JONES v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Noel L. Hillman on 9/26/2016. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNTIED STATES OF AMERICA,
Civ. No. 14-139 (NLH)
Matthew S. Wolf, Esq.
B. 2nd Floor
1236 Brace Rd.
Cherry Hill, NJ 08034
Counsel for Plaintiff
Marielena Piriz, Esq.
United States Attorney’s Office
970 Broad St.
Newark, NJ 07102
Counsel for Defendant United States of America
HILLMAN, District Judge
This matter is before the Court upon two motions for
summary judgment by Plaintiff Donald Jones. (ECF Nos. 72 & 75).
These motions were filed by Plaintiff, pro se, prior to the
appointment of counsel.
Defendant filed a response in
opposition (ECF No. 73) to the earlier-filed motion for summary
judgment (ECF No. 72).
Plaintiff then filed a reply (ECF No.
78) to Defendant’s response.
The Court has reviewed the
submissions of the parties and considers the motions without
oral argument pursuant to Federal Rule of Civil Procedure 78.
For the reasons set forth below, the motions for summary
judgment will be DENIED.
The procedural history of this case is set forth in the
Court’s July 28, 2015 Opinion addressing Plaintiff’s application
to reopen (ECF No. 40), and in this Court’s November 23, 2015
Opinion (ECF No. 51), in which the Court screened Plaintiff’s
Second Amended Complaint (ECF No. 44), denied Plaintiff’s Motion
for Pro Bono Counsel (ECF No. 45) and addressed Plaintiff’s
various letters and applications (ECF Nos. 42, 43, 46-49).
Therefore, the procedural history need not be repeated in detail
In relevant part, on November 23, 2015, this Court
determined that dismissal of the Second Amended Complaint
(“SAC”) was not warranted and the Clerk of the Court was ordered
to file the Complaint and issue summons, with service to be
effectuated by the United States Marshals Service. (ECF No. 52).
Shortly thereafter, Plaintiff submitted a letter seeking entry
of “summary judgment/default” (ECF No. 55), and then filed two
formal motions for summary judgment (ECF Nos. 56 & 58).
In an Opinion December 23, 2015 (ECF No. 59), the Court
explained to Plaintiff that, because service of the SAC had not
yet been effectuated, Defendant was not obligated to file a
responsive pleading, and the entry of default was inappropriate
and premature. See FED. R. CIV. P. 55(a).
Further, the Court
noted that, because no responsive pleading had been filed and no
discovery has been exchanged, Plaintiff’s motions for summary
judgment were premature.
Accordingly, the motions were denied
without prejudice to Plaintiff refiling a summary judgment
motion at an appropriate time in the future. (ECF No. 60).
Service was then effectuated and Defendant filed an Answer
to the SAC on March 31, 2016. (ECF No. 70).
however, Plaintiff filed another motion for summary judgment
(ECF No. 72), in which he argues that summary judgment should be
granted in his favor because Defendant has failed to respond to
Defendant filed an opposition (ECF No. 73) and
explains that an Answer was, in fact, filed, see (ECF No. 70).
Defendant also points out that Plaintiff’s motion is more akin
to a motion for default judgment.
Plaintiff then filed an “amended motion” for summary
judgment. (ECF No. 75).
In that motion, Plaintiff explains that
he seeks summary judgment pursuant to Federal Rule of Civil
Procedure 26, and he addresses the factors set forth in Poulis
v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984).
Finally, Plaintiff filed a reply to Defendant’s opposition
to his motion for summary judgment. (ECF No. 78).
document, Plaintiff concludes that he is entitled to summary
judgment because Defendant conceded liability in its Answer to
Plaintiff also seeks to amend his SAC to assert a
claim for conspiracy pursuant to 42 U.S.C. § 1985, for which he
seek an additional $20 million in damages.
A. ECF No. 72
In this motion, Plaintiff argues that summary judgment
should be granted in his favor because Defendant failed to
respond to the SAC.
As an initial matter, as Defendant points out, this motion
for summary judgment is more accurately framed as a motion for
default judgment, which is a two-step process requiring the
entry of default by the Clerk of the Court, FED. R. CIV. P. 55(a),
and the entry of judgement by default at the discretion of the
trial court, FED. R. CIV. P. 55(b). See Hritz v. Woma Corp., 732
F.2d 1178, 1180 (3d Cir. 1984) (cited in Smith v. Kroesen, No.
10-5723, 2015 WL 4913234, at *1 (D.N.J. Aug. 18, 2015)).
Moreover, Defendant filed a timely Answer (ECF No. 70);
therefore, Plaintiff’s argument is moot and the entry of a
default judgment is inappropriate.
Because this motion (ECF No.
72) is procedurally and substantively improper, it will be
B. ECF No. 75
In this document, Plaintiff seeks summary judgment pursuant
to Federal Rule of Civil Procedure 26, and he addresses the
factors set forth in Poulis v. State Farm Fire & Cas. Co., 747
F.2d 863 (3d Cir. 1984).
Specifically, Plaintiff asserts that
Defendant has failed to participate in discovery, and that
Defendant has not responded truthfully to Plaintiff’s discovery
requests. (Mot. 2, ECF No. 75).
The Court notes that Federal Rule of Civil Procedure 26
does not provide for a remedy in the form of summary judgment.
Instead, this Rule establishes general provisions governing
discovery. See FED. R. CIV. P. 26.
However, the Court gleans that
Plaintiff seeks sanctions against Defendant in the form of a
default judgment due to Defendant’s failure to comply with
Pursuant to Federal Rule of Civil Procedure
37, a district court may issue sanctions for failure to obey an
order to provide discovery. FED. R. CIV. P. 37(b)(2)(A)(vi).
As Plaintiff points out, when considering whether to impose
extreme discovery sanction such as a default judgment, courts in
this circuit apply the factors set forth in Poulis. See Jackson
Hewitt, Inc. v. Barnes Enterprises, Inc., 535 F. App'x 108, 112
(3d Cir. 2013); see also Firearm Owners Against Crime v. City of
Harrisburg, No. 1:15-CV-00322, 2015 WL 2095389, at *2 (M.D. Pa.
May 5, 2015) (“Courts in this circuit weigh the so-called Poulis
factors when considering entering default judgment or lifting a
judgment already entered.”) (citing Hoxworth v. Blinder,
Robinson & Co., 980 F.2d 912, 919 (3d Cir. 1992)); Schindler
Elevator Corp. v. Otis Elevator Co., No. 09-CV-0560, 2011 WL
4594225, at *6 (D.N.J. Mar. 24, 2011), report and recommendation
adopted, No. 09-CV-0560, 2011 WL 4594958 (D.N.J. Sept. 30, 2011)
(“The Third Circuit applies a six-factor test to determine
whether a party’s failure to comply with a discovery order
warrants an extreme discovery sanction, such as a default
Here, however, the parties had only just commenced the
discovery process at the time Plaintiff filed his motion.
Therefore, the Court cannot infer any prejudice to Plaintiff,
history of dilatory conduct, bad faith, or any other Poulis
factor which warrants a discovery sanction. See Poulis, 747 F.2d
Further, Rule 37(b) provides for sanctions for
violations of a court order.
In this case, no such order
compelling discovery from Defendant existed at the time
Plaintiff filed the instant motion.
Accordingly, sanctions under Rule 37 are inappropriate at
this time and Plaintiff’s motion is denied without prejudice as
To the extent Plaintiff believes that Defendant
continues to withhold discovery, or to be untruthful in
discovery responses, he may file an appropriate motion to compel
with the Court.
In the event Defendant fails to comply with any
resulting Court order, Plaintiff may renew his motion for
sanctions under Rule 37 at that time.
C. ECF No. 78
In this document, Plaintiff responds to Defendant’s
opposition (ECF No. 73) to the earlier-filed of Plaintiff’s
pending summary judgment motions (ECF No. 72).
asserts that summary judgment is appropriate because in the
Answer “defendants openly admitts [sic] that on April 9, 2012
prison medical officials failed to examine, diagnosis [sic] and
p[ro]vide medical treatment to the pro se plaintiff[.]” (Reply
1, ECF No. 78).
To the extent Plaintiff believes that Defendant
concedes liability for Plaintiff’s claims in the Answer to the
SAC, he is mistaken, and summary judgment is not warranted on
As Plaintiff notes, summary judgment is appropriate only
where there is “no genuine issue as to any material fact.”
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).
Here, the issue
in the case is the adequacy of Plaintiff’s medical care; and
Defendant explicitly “denies that Plaintiff is entitled to any
recovery[.]” (Answer to SAC 12, ECF No. 70).
Defendant has not conceded liability and Plaintiff has not met
his burden of demonstrating the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323.
Summary judgment is
Finally, in this document (ECF No. 78), Plaintiff also
seeks to amend his SAC to assert a claim for conspiracy pursuant
to 42 U.S.C. § 1985.
To the extent this document can be
considered a motion to amend, Plaintiff’s request will be
1. Standard for Amendment
Rule 15 of the Federal Rules of Civil Procedure governs
amendments and supplementation of pleadings. FED. R. CIV. P. 15.
Rule 15(a) authorizes a party to amend his pleading once as a
matter of course within 21 days after serving it, or if the
pleading is one to which a responsive pleading is required, 21
days after service of the responsive pleading, or 21 days after
service of a dispositive motion under Rule 12, whichever is
earlier. FED. R. CIV. P. 15(a)(1)(A) and (B).
“In all other
cases, a party may amend its pleading only with the opposing
party's written consent, or the court's leave,” which courts are
to freely give “when justice so requires.” FED. R. CIV. P.
Consistent with the plain language of this rule, leave to
amend rests in the discretion of the court.
however, is governed by certain basic principles, which are
embodied in Rule 15.
Thus, while Rule 15 provides that leave to
amend should be freely given when justice so requires, the
district court still retains broad discretion to deny a motion
to amend. See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d
Cir. 2008); Cureton v. National Collegiate Athletic Ass'n., 252
F.3d 267 (3d Cir. 2001).
“Among the grounds that could justify a denial of leave to
amend are undue delay, bad faith, dilatory motive, prejudice,
and futility.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000)
(quotations and citations omitted); see also Lutz v. Philips
Elecs. N. Am. Corp., 347 F. App'x 773, 777 (3d Cir. 2009)
(“Although leave to amend a complaint under Rule 15(a) should be
liberally granted, we have held that such leave should not be
permitted where an amendment to the complaint would be
“‘Futility’ means that the complaint, as amended,
would fail to state a claim upon which relief could be granted.”
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434
(3d Cir. 1997).
In assessing “futility,” courts apply the same
standard that governs a motion to dismiss under Rule 12(b)(6).
See Shane, 213 F.3d at 115.
As an initial matter, Plaintiff has not filed a formal
motion to amend which includes a proposed amended complaint for
the Court’s review.
“Th[e] failure [to attach a proposed
amended pleading] alone is grounds for the Court to deny a
request to amend a pleading.” Olmo v. Atl. City Parasail, LLC,
No. 13-4923, 2016 WL 1704365, at *6 n.9 (D.N.J. Apr. 28, 2016)
(citing Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d
267, 273 (3d Cir. 2001) (observing that “the court may deny a
request if the movant fails to provide a draft amended
Further, as his only basis for permitting amendment
Plaintiff states, “[i]n light of the defendants openly admitting
that they committed a conspiracy claim under 42 U.S.C. § 1985,
which became legal knowledge from the defendants filing on March
21, 2016, the pro se plaintiff now reserves the legal rights to
file a ‘(conspiracy claim under 42 U.S.C. 1985)’ in the amount
of $20 million dollars in the future under 42 U.S.C. 1985(3).”
(ECF No. 78 at 3).
Section 1985 consists of three subsections dealing with
various conspiracies to interfere with civil rights.
(3) provides a remedy, generally, if two or more persons
conspire or go on the premises of another, “for the purpose of
depriving, either directly or indirectly, any person . . . of
the equal protection of the laws, or of equal privileges and
immunities under the laws.” 42 U.S.C. § 1985(3).
To state a
claim under § 1985(3), a plaintiff must allege, “(1) a
conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws; and (3) an act in furtherance of the conspiracy;
(4) whereby a person is injured in his person or property or
deprived of any right or privilege of a citizen of the United
States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir.
2006) (internal quotation marks and citations omitted).
respect to the second element, “a claimant must allege some
racial or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action in order
to state a claim.” Id. at 135 (emphasis in original) (internal
quotation marks and citation omitted).
In this case, Plaintiff has not alleged, either in the SAC
(ECF No. 44), or in his recent submission (ECF No. 78), any
facts which suggest any discriminatory intent, or any other
elements of a § 1985 conspiracy claim. See, e.g., Drake v.
Muniak, No. 13-3868, 2014 WL 1665045, at *7 (D.N.J. Apr. 24,
2014) (dismissing § 1985 conspiracy claim without prejudice at
screening for failure to state a claim).
allegation that Defendant admitted to a conspiracy is unfounded
and unsupported by the record.
Because Plaintiff’s submission
fails to set forth any claim for conspiracy upon which relief
could be granted, amendment would be futile. See In re
Burlington Coat Factory Sec. Litig., 114 F.3d at 1434.
Therefore, to the extent Plaintiff’s submission (ECF No. 78) can
be construed as a motion to amend, Plaintiff will not be granted
leave to amend his SAC and his request is denied without
prejudice. See Lutz, 347 F. App'x at 777.
In the event
Plaintiff wishes to add claims to his SAC in the future, he must
file an appropriate motion, which includes a proposed third
amended complaint, and which sets forth a proper basis for
amendment under Federal Rule of Civil Procedure 15.
For the foregoing reasons, Plaintiff’s Motions for Summary
Judgment (ECF Nos. 72 & 75) are DENIED.
An appropriate Order follows.
____s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge
Dated: September 26, 2016
At Camden, New Jersey
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