BERROA v. ZICKEFOOSE et al

Filing 59

MEMORANDUM ORDER directing Plaintiff to file a response regarding proposed amended complaint within 30 days. Signed by Judge Noel L. Hillman on 6/20/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
DONNA ZICKEFOOSE, et al.,
:
:
Defendants.
:
______________________________:
HARRY BERROA,

Civ. No. 13-4789 (NLH)
MEMORANDUM ORDER

APPEARANCES:
Harry Berroa, #62268-066
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Plaintiff Pro se
HILLMAN, District Judge
IT APPEARING THAT:
1.

Plaintiff Harry Berroa (“Plaintiff”), an inmate

currently confined at the Federal Correctional Institution in
Fort Dix, New Jersey, filed this civil action alleging
negligence and inadequate medical care which resulted in an
injury and a permanent disability to a finger on Plaintiff’s
right hand.

(ECF No. 1.)

2.

After conducting its initial screening of the

Complaint, the Court dismissed Plaintiff’s Bivens1 claims without
prejudice as time barred and permitted his Federal Tort Claims
Act, 28 U.S.C. §§ 1346(b), 2401, 2671, et seq. (“FTCA”) claims
to proceed.
3.

(ECF Nos. 7, 8.)

Plaintiff thereafter filed a motion for leave to file

an amended complaint, which put forth tolling arguments for his
previously-dismissed Bivens claims.

(ECF No. 32.)

On August

26, 2016, the Court denied the motion without prejudice because
Plaintiff failed to attach a copy of his amended complaint.
(ECF No. 36.)
4.

On November 17, 2016, Plaintiff filed the instant

Motion for Leave to File an Amended Complaint.
41.)

(Mot., ECF No.

In said Motion, Plaintiff argues that the statute of

limitations for his Bivens claims should be tolled because he
was exhausting his claims through the administrative remedy
process.
5.

(Mot. 2-3.)
Plaintiff also re-asserts his claims from the original

Complaint.

However, he provides substantially less facts in his

proposed Amended Complaint. Specifically, he does not allege any
facts about the wet stairwell; the lack of responsiveness to his

Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
1

2

pain after the attempted re-set of the finger; and denial of
physical therapy.
6.

As this Court previously advised Plaintiff, when

submitting a motion to amend, he should “attach[] to such a
motion a proposed amended complaint which, in addition to
including any and all claims he wishes to assert in the instant
action, includes sufficient allegations to support tolling the
statute of limitations applicable to claims filed under Bivens.”
(August 26, 2016 Memorandum Order, ECF No. 36; April 6, 2016
Opinion, ECF No. 25).
7.

While the Court cannot rule out the possibility that

Plaintiff intended to omit the facts identified above, given his
pro se status, the Court will provide Plaintiff with an
opportunity to advise the Court as to whether he wishes for it
to consider the current proposed amended complaint as his allinclusive complaint for purposes of his Motion to Amend.2

If

Plaintiff would like the Court to decide his motion based the
currently pending proposed amended complaint, he shall state
such in a letter.

If there are other factual allegations which

Plaintiff intended for the Court to consider when adjudicating
his Motion to Amend which are not included in his currently
pending proposed amended complaint, Plaintiff must submit a

The Court notes that Plaintiff also includes facts in his Reply
brief which are not included in his proposed amended complaint.
2

3

revised proposed amended complaint which contains all claims and
facts, and any tolling arguments.
Therefore,
IT IS on this

20th

day of

June

, 2017,

ORDERED that within 30 days of the day of this Order, if
Plaintiff would like the Court to decide his motion based the
currently pending proposed amended complaint, he shall state
such in a letter; if there are other factual allegations which
Plaintiff intended for the Court to consider when adjudicating
his Motion to Amend which are not included in his currently
pending proposed amended complaint, within 30 days of the date
of this Order, Plaintiff must submit a revised proposed amended
complaint which contains all claims and facts, and any tolling
arguments; and it is further
ORDERED that for case management purposes, the Clerk of the
Court shall administratively terminate the pending Motion to
Amend (ECF No. 41); upon receipt of Plaintiff’s submission
advising how he would like to proceed, the Court will address
said motion as appropriate; and it is further
ORDERED that the Clerk of the Court shall serve a copy of
this Opinion and Order upon Plaintiff by regular U.S. mail.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

4