BARNES v. WILLIAM et al

Filing 42

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/13/2014. (drw)n.m.

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

JAMES BARNES,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 13-4239 (JBS/KMW)

v.
WILLIAM EDWARDS, et al.,

MEMORANDUM OPINION
Defendants.

SIMANDLE, Chief Judge:
Before the Court are Plaintiff James Barnes’ motions for an
order compelling discovery, for pro bono counsel, and for
injunctive relief against Yolette C. Ross, who is not a party to
this action. [Docket Item 22.] For the following reasons, Barnes
motion will be denied:
1.

Plaintiff, who is presently incarcerated, brought this

action against Defendants William Edwards and Eric Gorecke, who
are parole officers. He alleges that Defendants extorted money
from him in exchange for a promise to reduce his parole. (Compl.
at 4-5.) He claims that Defendants visited him, and Defendant
Edwards stated, “You have a lot of parole, but if you do good
and pay your $100.00 per month, I can cut the last 2 years of
your parole short.” (Id. at 5.) Plaintiff agreed and began
paying $100.00 per month from his disability and welfare funds.
(Id.) Defendant Edwards allegedly told Plaintiff “to never say

anything to anyone or [Plaintiff] will be sent back to prison.”
(Id.) Plaintiff alleges that Defendants assaulted him when he
refused to continue paying. “After giving up $800.00,
[Plaintiff] told Edwards . . . I was not going to give up any
more money and I was going to tell my wife what going on, and
that when Edwards and Eric [Gorecke] begain [sic] assaulting
me.” (Id.) Plaintiff seeks damages for “pain and suffering and
the harm my disable [sic] body took from the beating . . . and
the $800.00 back they took from me . . . .” (Id. at 6.)
2.

When Plaintiff first submitted his Complaint, he

provided neither a filing fee nor a complete in forma pauperis
application. Plaintiff’s Complaint was dismissed without
prejudice [Docket Item 3], he submitted a new in forma pauperis
application [Docket Item 6], and the Court issued an Order
[Docket Item 9] granting his application and ordering the Clerk
of Court to file his Complaint. Defendants filed an Answer.
[Docket Item 15-1 at 5-10.]
3.

Plaintiff then filed the instant motion to compel

discovery, appoint pro bono counsel, and obtain an injunction.
The Court will address each issue in turn.
4.

Plaintiff seeks a court order compelling discovery.

Defendants opposed [Docket Item 23] Plaintiff’s motion because
Plaintiff filed his motion before serving any discovery requests
upon Defendants. After Plaintiff filed this motion, Magistrate
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Judge Karen M. Williams held a telephone status conference and
began the discovery process. She issued a scheduling order
[Docket Item 30] directing the parties to, inter alia, complete
medical record release forms, serve subpoenas, and exchange
specific documents. Judge Williams then scheduled a follow-up
telephone conference to monitor the discovery process. The
follow-up conference has not yet occurred; it is scheduled for
August 20, 2014.
5.

Plaintiff’s motion to compel discovery will be

dismissed as moot because he filed it before serving Defendants
with discovery requests and before the court-supervised
discovery process began and before any discovery was overdue. If
there are any issues with the ongoing discovery process, they
should be raised with Judge Williams at the upcoming telephone
conference.
6.

Plaintiff also seeks appointment of pro bono counsel

because he claims that he is unfamiliar with criminal and civil
law, he needs investigation assistance, and he needs
representation at trial. “The court may request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1). In Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), the
Third Circuit established criteria for appointing counsel for
indigent civil litigants. As a threshold matter, the Court must
assess whether Plaintiff’s case has some arguable merit in fact
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and law. Id. at 155. If so, then the Court must consider any
constraints due to Plaintiff’s imprisonment and his ability to
represent himself, including his education, literacy, ability to
understand English, prior work experience, and prior litigation
experience. Id. at 156. The Court must also consider the
complexity of the legal issues, Plaintiff’s ability to pursue
any necessary factual investigation, the complexity of
discovery, whether the case is likely to turn on credibility
determinations, and whether expert testimony is required. Id.
7.

The Court will deny Plaintiff’s motion for pro bono

counsel without prejudice. At this early stage of the
litigation, it is difficult to assess the merits of Plaintiff’s
claims. Plaintiff claims that he needs assistance at trial but,
at this early stage, it is unclear whether the case will proceed
to trial. In addition, there is no indication, at this time,
that Plaintiff is hindered in his ability to pursue necessary
factual investigation. Plaintiff seeks medical records, but
courts have held that a plaintiff “can conduct the necessary
discovery of his medical record.” Moore v. Cumberland Cnty. Bd.
of Freeholders, Civ. 06-4516 (RMB), 2006 WL 3359625, at *6
(D.N.J. Nov. 16, 2006). Moreover, there is no indication at this
time that complex legal or discovery issues exist or that expert
testimony is necessary. Plaintiff has not provided information
about his education, prior work experience, and prior litigation
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experience, but Plaintiff does not appear ignorant of the
litigation process. His motion shows that he is aware of certain
laws and procedural mechanisms. Furthermore, both Plaintiff’s
Complaint and the instant motion were clearly written and
understandable. Plaintiff also allegedly obtained a paralegal’s
assistance in drafting his motion. [Docket Item 22 at 2.] After
considering the various Tabron factors, the Court will deny
Plaintiff’s motion. The denial is without prejudice to his right
to seek pro bono counsel at a later date because “appointment of
counsel under § 1915(d) may be made at any point in the
litigation.” Tabron, 6 F.3d at 156.
8.

Finally, Plaintiff seeks an injunction against Yolette

C. Ross, Vice Chairman of the New Jersey State Parole Board.
[Id.] Plaintiff asks the Court to prohibit Ross “from chairing
any other parole hearing against [Plaintiff].” [Id. at 6.]
Plaintiff alleges that Ross “had complete knowledge of the claim
[Plaintiff] filed against both of her colleagues that work for
the New Jesrey [sic] State Parole Board, and still insisted to
chair petitioner Barnes second techincal [sic] . . . .” [Id. at
6.] Ross allegedly “requested that petitioner Barnes be given a
second (14) month techincal [sic] violation.” [Id.]
9.

Plaintiff’s motion for injunctive relief will also be

denied without prejudice. “[C]ourts are generally unable to
issue injunctive relief against a non-party to an action.” Vital
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Pharm., Inc. v. USA Sports, LLC, Civ. 11-975, 2012 WL 760561, at
*9 (M.D. Pa. Mar. 8, 2012). “A non-party cannot be bound by the
terms of an injunction unless the non-party is found to be
acting in active concert or participation with the party against
whom injunctive relief is sought.” Elliott v. Kiesewetter, 98
F.3d 47, 56 n.5 (3d Cir. 1996) (quotation omitted). Plaintiff
alleges that Ross “had complete knowledge of the claim
[Plaintiff] filed against both of her colleagues,” but Plaintiff
has not shown that Ross was acting in active concert or
participation with Defendants.
10.

Moreover, “[a]n injunction is a drastic and

extraordinary remedy, which should not be granted as a matter of
course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165
(2010). A plaintiff seeking a permanent injunction must
demonstrate: “(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent
injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,
391 (2006). Plaintiff has not satisfied these factors and has
not shown that he is entitled to this extraordinary remedy.

6 

Plaintiff’s motion for injunctive relief is denied without
prejudice.
11.

Plaintiff’s motions to compel discovery, appoint

counsel, and obtain an injunction are all denied without
prejudice. An accompanying Order will be entered.

August 13, 2014
Date

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

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