BRYANT v. JACKSON et al

Filing 26

ORDER denying Pltf's 25 Motion for Default Judgment. Pltf may REFILE the motion under Fed. R. Civ. P. 55(b)(2), w/ accompanying documents or affidavit testimony explaining the evidence of liability and damages. Order sent to the Attorney General of New Jersey. Signed by Chief Judge Jerome B. Simandle on 8/25/2014. (drw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PONTELL BRYANT,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 13-2823 (JBS/AMD)

S/C.O. G. JACKSON, et al.,
Defendants.

ORDER

Plaintiff Pontell Bryant, pro se, brings this lawsuit
against several corrections officers at South Woods State Prison
in Bridgeton, N.J., who allegedly used excessive force against
him while he was incarcerated there.1 Specifically, he alleges
that he was punched and kicked repeatedly and unnecessarily by
officers while restrained in his cell. (Compl. [Docket Item 1]
at 5-6.) He seeks $125,000 and injunctive relief “restraining
defendants from any kind of further retaliation.” (Id. at 8.)
This matter is before the Court on Plaintiff’s motion for
“default judgment against Jackson, et al,” under Fed. R. Civ. P.
55(b)(1). (Pl. Mot. [Docket Item 25] at 1.)2

1

The named Defendants are: S/C.O. G. Jackson; S/C.O. Higbee;
S/C.O. J. Rivera; S/C.O. S. Herman; Sgt. Janda; and Officer B.
Bagliani. Plaintiff currently is incarcerated in a different
state prison. See Docket Item 24 (“change of address”).
2

Plaintiff brings constitutional claims under 42 U.S.C. § 1983.
The Court has jurisdiction over the federal claims under 28

This Court granted Plaintiff’s application to proceed in
forma pauperis and summonses were issued as to “S/C.O. S.
Herman, S/C.O. Higbee, S/C.O. G. Jackson, Sgt. Janda, [and]
S/C.O. J. Rivera.” [See Docket Item 3.] The summonses were
returned executed as to Officers Herman, Higbee and Rivera, but
unexecuted as to Officer Jackson and Sergeant Janda. [Docket
Items 6 & 7.] Officer Jackson, according to Plaintiff, died in
June 2013. [Docket Item 9.] Plaintiff wrote a letter to the
Court advising that the summonses were returned unexecuted in
error as to Sergeant Janda, Officer Higbee and Officer Jackson
[id.], and the Court responded that Higbee, in fact, had been
served, and that Plaintiff could take up the issue of serving
Sergeant Janda “with the attorney who enters an appearance on
behalf of the other Defendants and get an agreement to
effectuate service at Sgt. Janda’s current address.” [Docket
Item 11.] Plaintiff then moved to add Officer B. Bagliani to the
Complaint, which the Court permitted, and Officer Bagliani was
served. [Docket Items 12, 14 & 16.]
None of the Defendants who have been served -- Officers
Bagliani, Herman, Higbee and Rivera -- have answered or
otherwise responded to the Complaint. Officers Herman, Higbee
and Rivera were required to file an answer by April 9, 2014, and

U.S.C. § 1331, and supplemental jurisdiction over the state-law
claim of negligence under 28 U.S.C. § 1367.
2

Officer Bagliani was required to file an answer by May 29, 2014.
[Docket Items 7 & 16.] No appearances have been entered on
behalf of any of the Defendants.
Plaintiff requested that the Clerk of Court enter default
“against the defendants,” under Fed. R. Civ. P. 55(a). [Docket
Item 22.] The Clerk entered default against Officers Bagliani,
Herman, Higbee and Rivera on June 24, 2014. Approximately one
month later, Plaintiff filed the present motion for default
judgment under Fed. R. Civ. P. 55(b)(1). [Docket Item 25.]
Plaintiff’s motion is a standardized form on which he has
filled in the blanks. It is captioned “REQUEST TO ENTER DEFAULT
JUDGMENT (Fed. R. Civ. P. 55(b)(1)).” (Pl. Mot. at 1.) Plaintiff
lists the name of the defaulting party as “Jackson, et al” and
demands a judgment of $125,000. (Id.) Plaintiff also attaches a
standardized form affidavit, which he has partially completed.
The affidavit (including blanks and directions to the affiant in
brackets) provides in part:
The claim asserted in the
civil complaint
[name of
pleading, e.g., complaint] is for a sum certain or a
sum that may be made certain within the meaning of
Rule 55(b)(1) of the Federal Rules of Civil Procedure.
The claim is for excessive force [describe nature of
claim, e.g., the unpaid balance on a promissory note,
the original of which is attached as Exhibit
to
this Affidavit and incorporated into it by reference].
The specific amount due, together with interests and
costs of the suit, is established
[below or in the Statement of Amount Due attached to
and incorporated into this Affidavit as Exhibit
].
3

Jackson, et al
[Name of defaulting party] owes
125,00000
[name of requesting party] the sum certain
amount of
$125,000
[net amount due, including
interest and costs] . . . .
(Pl. Aff. ¶¶ 7-8) (paragraph numbers and headings omitted).
Plaintiff provides no other supporting material to explain how
he arrived at the sum of $125,000. He signed his affidavit, but
the portion of the form reserved for a notary is blank. The
deadline to file opposition to the motion for default judgment
has passed without any response from Defendants.
Rule 55 of the Federal Rules of Civil Procedure provides
that, after the Clerk of Court enters default against a party:
[i]f the plaintiff’s claim is for a sum certain or a
sum that can be made certain by computation, the clerk
-- on the plaintiff’s request, with an affidavit
showing the amount due -- must enter judgment for that
amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor
nor an incompetent person.
Fed. R. Civ. P. 55(b)(1). However, if plaintiff’s claim is not
for a sum certain or a sum that can be made certain by
computation, “the party must apply to the court for a default
judgment.” Fed. R. Civ. P. 55(b)(2). In the latter case, the
court may conduct hearings to “conduct an accounting,”
“determine the amount of damages,” “establish the truth of any
allegation by evidence,” or “investigate any other matter.” Fed.
R. Civ. P. 55(b)(2)(A)-(D).

4

Here, Plaintiff’s Complaint requests $125,000 in
“compensatory and punitive damages” for injuries resulting from
the use of excessive force. (Compl. at 8.) Plaintiff has not
identified any actual expenses he has incurred as a result of
his injuries, and he provides no documentary or testimonial
evidence to explain the extent of his injuries or how he
computed damages in this case. Plaintiff’s request is not for a
“sum certain.” See Pearson v. Sonnet Trucking, Inc., No. 095917, 2011 WL 2923689, at *2 (E.D. Pa. July 20, 2011) (stating
that a damages demand for “past and future medical expenses,
pain, and suffering” is not a request for a sum certain and
“must be evaluated under Rule 55(b)(2), not (b)(1)”). In
general, plaintiffs are “not automatically entitled to the
damages they originally demanded” in the complaint, but a
plaintiff may be “required to prove that he or she is entitled
to the damages sought.” Rainey v. Diamond State Port Corp., 354
F. App’x 722, 724 (3d Cir. 2009) (citing Comdyne I, Inc. v.
Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990), and DIRECTV Inc. v.
Pepe, 431 F.3d 162, 165 (3d Cir. 2005)). Because damages under
the Complaint are not susceptible to proof in a sum certain,
such as by an accounting of a business ledger, Plaintiff’s
motion for default judgment cannot be granted under Fed. R. Civ.
P. 55(b)(1).

5

The Court will grant Plaintiff leave to file a motion for
default judgment under Rule 55(b)(2) and to provide an
accompanying affidavit (or other documentary evidence)
justifying his claim of liability and for an award of damages,
and explaining how the damages are calculated. Medical records
of treatment for the injuries for which Plaintiff claims damages
must also be provided. If Plaintiff claims a permanent condition
as part of his damages, he must furnish a competent medical
opinion relating the cause and effects of the injury, and the
permanency of the injury. Any new motion for default judgment
must specifically name each party against whom the Plaintiff
seeks default judgment, and specify what each defaulting
Defendant did or failed to do that makes him or her liable under
§ 1983. If there is a prima facie basis for a recovery of such
damages,3 the Court would have the obligation of convening a
default judgment hearing to take necessary testimony.
THEREFORE IT IS this

25th

day of

August

, 2014,

hereby
ORDERED that Plaintiff’s motion for default judgment under
Fed. R. Civ. P. 55(b)(1) is DENIED; Plaintiff may re-file the
motion under Fed. R. Civ. P. 55(b)(2), with accompanying
3

“No Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act (as
defined in section 2246 of Title 18).” 42 U.S.C. § 1997e.
6

documents or affidavit testimony explaining the evidence of
liability and damages; and it is further
ORDERED that the Clerk of Court shall provide a copy of
this Order by regular mail to the Attorney General of New Jersey
to advise of default and of the prospect of default judgment
against these State officers.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

7