YURATOVICH v. U.S. DEPARTMENT OF JUSTICE et al
Filing
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OPINION FILED. Signed by Judge Noel L. Hillman on 12/8/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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:
:
Plaintiff,
:
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v.
:
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U.S. DEPARTMENT OF JUSTICE, et al.,:
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Defendants.
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___________________________________:
JAMES P. YURATOVICH,
Civ. No. 13-5651 (NLH)
OPINION
APPEARANCES:
James P. Yuratovich, #70237056
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Plaintiff, pro se
Daniel Gibbons, Esq.
Office of the United States Attorney
970 Broad St.
Suite 700
Newark, NJ 07102
Counsel for Defendants
HILLMAN, District Judge
This matter is presently before the Court upon the filing
of a Motion for Judgment on the Pleadings (ECF No. 23) by
Plaintiff, and a Motion to Dismiss (ECF No. 24) by Defendants.
For the reasons set forth below, the motions will be DENIED.
I.
PROCEDURAL HISTORY
Plaintiff James P. Yuratovich, a prisoner confined at the
Federal Correctional Institution in Fort Dix, New Jersey, filed
this civil action asserting claims pursuant to 42 U.S.C. § 1983
and paid the requisite filing fee.
On August 4, 2014, the Court
completed its sua sponte screening pursuant to 28 U.S.C. § 1915A
and 42 U.S.C. § 1997e and determined that dismissal was not
warranted at that time.
Accordingly, the Court issued summons
and directed the United States Marshal to serve Defendants.
Service was effectuated on July 8, 2015 and July 16, 2015. (ECF
Nos. 18, 19).
In lieu of filing an Answer, on September 22, 2015,
Defendants filed a Motion to Dismiss or Motion for Summary
Judgment. (ECF No. 20).
In an Order dated September 25, 2015,
the Court denied Defendants’ motion as procedurally improper,
without prejudice to Defendants filing a procedurally
appropriate motion to dismiss or motion for summary judgment.
(ECF No. 22).
On October 8, 2015, Plaintiff filed a Motion for Judgment
on the Pleadings (ECF No. 23), which is more accurately
described as a motion for default judgment.
October 21, 2015,
Defendants filed a second Motion to Dismiss. (ECF No. 24).
II.
DISCUSSION
A. Plaintiff’s Motion (ECF No. 23)
Although Plaintiff titles his motion, “Motion for Judgment
on the Pleadings,” it is more accurately described as a motion
for default judgment.
Specifically, Plaintiff asserts that
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Defendants, as of October 5, 2015, had not responded to the
allegations of the Complaint.
Accordingly, Plaintiff contends
that the time for a response pursuant to Federal Rule of Civil
Procedure 12(a)(c) has lapsed.
Therefore, he requests a default
judgment.
Entry of default judgment, however, is a two-step process.
FED. R. CIV. P. 55(a), (b).
A party seeking to obtain a default
judgment must first request that the Clerk of the Court “enter
... the default” of the party that has not answered the pleading
or “otherwise defend[ed],” within the time required by the rules
or as extended by court order. FED. R. CIV. P. 55(a).
Of
particular relevance to the instant case, timely serving and
filing a motion to dismiss under FED. R. CIV. P. 12(b), precludes
entry of default. See Francis v. Joint Force Headquarters Nat'l
Guard, No. 05-4882, 2006 WL 2711459, at *2 (D.N.J. Sept. 19,
2006) aff'd in part, vacated in part, remanded sub nom. Francis
v. Joint Force Headquarters Nat. Guard, 247 F. App'x 387 (3d
Cir. 2007).
Moreover, even if default is properly entered, the
entry of judgment by default pursuant to Rule 55(b)(2) 1 is within
the discretion of the trial court. Hritz v. Woma Corp., 732 F.2d
1
The Court notes that in his motion Plaintiff cites to Federal
Rule of Civil Procedure “42(c).” (Mot. 2, ECF No. 23). However,
Federal Rule of Civil Procedure 42 does not contain a subsection
“(c)”.
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1178, 1180 (3d Cir. 1984) (cited in Smith v. Kroesen, No. 105723, 2015 WL 4913234, at *1 (D.N.J. Aug. 18, 2015)).
In this case, as discussed above, Defendants have filed two
separate motions to dismiss (ECF No. 20, 24) in response to
Plaintiff’s Complaint.
and is addressed below. 2
The later-filed motion remains pending
Pursuant to Federal Rule of Civil
Procedure 12(b), a motion to dismiss for failure to state a
claim may be filed in lieu of an answer. See FED. R. CIV. P. 12(b)
(“A motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed.”); see also Local
Civil Rule 12.1 (“When asserting, by way of a motion, any of the
defenses allowable under FED. R. CIV. P. 12(b), a party may file
the motion without prior Court approval.”).
Accordingly, because Defendants have submitted a motion to
dismiss, the entry of default would be inappropriate. See
Francis, No. 05-4882, 2006 WL 2711459, at *2.
Accordingly,
Plaintiff’s request for a default judgment is denied.
2
The Court notes that Plaintiff filed the instant motion after
the Court denied Defendants’ first motion to dismiss and before
Defendants filed their second, still-pending motion to dismiss.
Therefore, at the time Plaintiff’s motion for default judgment
was filed, no motion by Defendants was pending. Nevertheless,
Defendants’ second motion to dismiss was timely filed and, for
the reasons explained above, precludes the entry of default.
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B. Defendants’ Motion to Dismiss (ECF No. 24)
Defendants seek dismissal of Plaintiff’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(6).
Specifically,
Defendants assert that, because Plaintiff seeks only injunctive
relief in the form of certain medical treatments, and because
those treatments have been provided, the Complaint should be
dismissed as moot. (Br. 6, 16-17, ECF No. 24-1).
In addition to
the mootness argument, Defendants assert that Plaintiff’s claims
should be dismissed as unexhausted, (Id. at 17-21), or denied on
the merits (Id. at 21-25) 3.
In support of their motion,
Defendants rely on the record of exhaustion contained in the
Declaration of Tara Moran, and the record of medical treatment
attached to the Declaration of Ravi Sood. (Id. at 16).
1. Analysis
In reviewing a Rule 12(b)(6) motion to dismiss, a court
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);
3
The Court notes that in this section of their brief, Defendants
cite and discuss the standard for granting a motion for a
preliminary injunction. However, Plaintiff has not filed such a
motion and, instead, seeks injunctive relief as his remedy.
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see also Winer Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir.
2007).
If any matters outside the pleadings are presented to the
court, and the court does not exclude those matters, a Rule
12(b)(6) or Rule 12(c) motion must be treated as a summary
judgment motion pursuant to Rule 56. FED. R. CIV. P. 12(d).
Here, Defendants assert that the Court can consider
documents outside the pleadings without converting the motion to
dismiss into one for summary judgment. (Br. 16, ECF No. 24-1).
Defendants cite case law from the Third Circuit and from other
districts in support of this contention.
Indeed, the Third Circuit has held that “[a]lthough the
plain language of Rule 12(b) seems to require conversion
whenever a district court considers materials outside the
pleadings, we and other courts of appeals have held that a court
may consider certain narrowly defined types of material without
converting the motion to dismiss.” In re Rockefeller Ctr.
Properties, Inc. Securities Litig., 184 F.3d 280, 287 (3d Cir.
1999).
However, the documents submitted by Defendants — the
record of exhaustion contained in the Declaration of Tara Moran,
and the record of medical treatment attached to the Declaration
of Ravi Sood — do not fit the “narrowly defined types of
material” contemplated by the Third Circuit that may be
considered when ruling on a Rule 12(b)(6) motion.
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As Defendants point out, one “exception to this general
rule [that only the pleadings may be considered in a 12(b)(6)
motion] provides that a “‘document integral to or explicitly
relied upon in the complaint’ may be considered ‘without
converting the motion [to dismiss into one for summary
judgment].’” Mele v. Fed. Reserve Bank of New York, 359 F.3d
251, 256 (3d Cir. 2004), as amended (Mar. 8, 2004) (quoting In
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997)) (emphasis and citations omitted); see also Pension
Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993) (a court may also “consider an undisputedly
authentic document that a defendant attaches as an exhibit to a
motion to dismiss if the plaintiff's claims are based on the
document”).
Additionally, courts may consider and take judicial
notice of matters of public record, see Sands v. McCormick, 502
F.3d 263, 268 (3d Cir. 2007), including prior judicial
proceedings, McTernan v. City of York, Penn., 577 F.3d 521, 526
(3d Cir. 2009). See also Lovallo v. Pacira Pharm., Inc., No. 1406172, 2015 WL 7300492, at *5 (D.N.J. Nov. 18, 2015).
In their brief, Defendants conclude that “this Court may
consider the court records from Plaintiff’s prior federal civil
action without converting the motion to dismiss into one for
summary judgment.” (Br. 16, ECF No. 24-1).
However, Defendants
do not reference any prior federal civil action filed by
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Plaintiff, or the documents contained therein, in support of the
instant motion.
Moreover, Plaintiff asserts that he “has never
filed any previous civil rights complaints while he has been
incarcerated.” (Compl. 8, ECF No. 1).
Because Defendants do not explain how the extraneous
documents they rely on in support of their motion fall under any
of the exceptions discussed above, those documents may not be
considered without conversion of the instant motion to dismiss
to a motion for summary judgment.
Additionally, to the extent
Defendants request dismissal based on Plaintiff’s failure to
exhaust his administrative remedies, this Court notes that
“[f]ailure to exhaust is an affirmative defense under the
[Prison Litigation Reform Act], and inmates are not required to
specially plead or demonstrate exhaustion in their complaints.”
Jones v. Bock, 549 U.S. 199, 199, 127 S. Ct. 910, 912, 166 L.
Ed. 2d 798 (2007).
Rather, exhaustion of remedies is a factual
inquiry, and it is Defendants' burden to prove failure to
exhaust. Small v. Camden Cty., 728 F.3d 265, 271 (3d Cir. 2013).
Therefore, exhaustion is an issue that is more appropriately
resolved on summary judgment.
This Court has discretion to either convert the 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. See Edwards v. New Jersey,
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No. 13-214, 2015 WL 5032680, at *3 (D.N.J. Aug. 25, 2015); Kelly
v. HD Supply Holdings, Inc., No. 14-372, 2014 WL 5512251, at *2
(D.N.J. Oct. 31, 2014); Kurdyla v. Pinkerton Sec., 197 F.R.D.
128, 131 (D.N.J. 2000); see also 5C CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE
AND
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.”).
Also, it has been suggested that a “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, 131 n.8).
At this stage in the litigation, little discovery has been
exchanged.
Indeed, Plaintiff recently filed a motion requesting
discovery from Defendants. (ECF No. 25).
Moreover, because the
instant motion is described only as a Motion to Dismiss, and
because Plaintiff is 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
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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.
Because Defendants have presented no arguments for
dismissal under Rule 12(b)(6) which do not rely on the
extraneous documentation, there is no basis for the Court to
grant their motion.
Accordingly, it is denied without prejudice
to Defendants filing a Rule 12(b)(6) motion to dismiss which
does not rely on documents outside the pleadings, or which
relies on documents which fall under an exception to the general
rule that the a court may only consider the facts alleged in the
pleadings, the documents attached to or specifically referenced
in the complaint, and matters of judicial notice.
Alternatively, Defendants may file their responsive pleading to
the Complaint, followed by a motion for summary judgment
submitted in accordance with the Federal Rules of Civil
Procedure and the Local Civil Rules.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Judgment
on the Pleadings (ECF No. 23), which is more accurately
described as a motion for default judgment, is DENIED.
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Defendants’ Motion to Dismiss (ECF No. 24) is DENIED without
prejudice.
Defendants are required to file a responsive
pleading within 30 days.
An appropriate Order will follow.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: December 8, 2015
At Camden, New Jersey
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