FERRANTI v. DIXON
OPINION filed. Signed by Judge Noel L. Hillman on 10/6/2015. (drw)n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 14-3331 (NLH)
Jack Ferranti, #45299-053
P.O. Box 1000
White Deer, PA 17887
Plaintiff Pro se
Kristin Lynn Vassallo
Office of the United States Attorney
970 Broad Street
Newark, NJ 07102
Counsel for Defendant
HILLMAN, District Judge
Plaintiff Jack Ferranti, an inmate currently confined at
Federal Correction Institution (“FCI”) Allenwood in White Deer,
Pennsylvania filed his Complaint on May 27, 2014 alleging claims
under Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
(ECF No. 1).
Since that time, several items have been filed on
the docket which the Court now addresses.
entry of default has been entered against Defendant Joseph
Also pending are two motions: Defendant’s Motion to
Dismiss or, in the alternative, for Summary Judgment (ECF No.
20); and Plaintiff’s Motion for Default Judgment (ECF No. 22).
For the reasons set forth below, the Court will vacate the entry
of default, deny the pending motions, permit the Complaint to
proceed, and require Defendant to file an appropriate responsive
As set forth above, Plaintiff filed this civil action,
asserting claims under Bivens 1 on May 27, 2014. (ECF No. 1).
Because Plaintiff paid the filing fee, summons issued. (ECF No.
6). On October 24, 2014, the Court received a letter from
Plaintiff requesting an extension in time because he was having
difficulty serving the summons. (ECF No. 7).
The Court received
a second letter from Plaintiff on October 27, 2014 in which
Plaintiff requested assistance from the Court in serving his
Although Plaintiff does not expressly state that he brings his
claims pursuant to Bivens, paragraph one of his Complaint
states, “[this is an action to redress the violation of
Plaintiff’s rights under the Constitution of the United States.
And the laws of the United States.” (Compl. 1, ECF No. 1).
Because Plaintiff has alleged a constitutional violation by
federal officials, the Court will presume that his claims are
filed under Bivens. See Correctional Services Corp. v. Malesko,
534 U.S. 61, 66 (2001) (holding that in Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
the Supreme Court “recognized for the first time an implied
private action for damages against federal officers alleged to
have violated a citizen's constitutional rights.”).
summons. (ECF No. 8).
The Court issued an Order on March 9,
2015 and ordered the United States Marshal Service to serve the
summons, with the cost of such service to be paid by Plaintiff.
(ECF No. 11).
Summons issued and were returned executed. (ECF
Nos. 15, 16, 17).
On August 20, 2015, the Court received a request for entry
of default against Defendant Joseph Dixon. (ECF No. 18).
result, the Clerk of the Court entered default.
On August 21,
2015, the Court received a letter from counsel for Defendant
which cited to Federal Rule of Civil Procedure 12(a)(3). (ECF
Specifically, counsel for Defendant alleged that
Defendant’s time to respond to the Complaint had not yet run
because Defendant must respond “within 60 days after service on
the officer or employee or service on the United States
attorney, whichever is later.” FED. R. CIV. P. 12(a)(3).
Accordingly, counsel asserted that the deadline for a response
to the Complaint was September 8, 2015 and counsel requested
that the entry of default against Defendant be removed from the
docket. (ECF No. 19).
On September 1, 2015, Defendant filed a Motion to Dismiss
or, in the alternative, for Summary Judgment (ECF No. 20), which
On September 4, 2015, the Court received a
letter from Plaintiff in which he expressed his belief that
Defendant Joseph Dixon’s time to respond to the Complaint
expired on August 3, 2015. (ECF No. 21).
requested that the entry of default remain on the docket.
Plaintiff also questioned why the United States Attorney’s
Office was not served until 35 days after Defendant Joseph Dixon
had been served, and asked whether service on the United States
Attorney’s Office was effectuated by electronic filing. (Id.).
On September 23, 2015, Plaintiff filed a formal Motion for
Default Judgment as to Defendant Joseph Dixon. (ECF No. 22).
The Court will address each of these filings below.
A. The Complaint
As an initial matter, although Plaintiff paid the filing
fee in this case, the Complaint is still subject to sua sponte
screening by the Court. See 28 U.S.C. 1915A (requiring the Court
to review a complaint in a civil action filed by prisoner
against an employee of a governmental entity).
As this time,
the Court must review the Complaint to determine whether it
should be dismissed as frivolous or malicious, for failure to
state a claim upon which relief may be granted, or because it
seeks monetary relief from a defendant who is immune from suit
pursuant to 28 U.S.C. § 1915A.
In his Complaint, Plaintiff asserts that a Unit Counselor
at FCI Fort Dix, Joseph Dixon, inquired about Plaintiff’s
participation in the Bureau of Prison’s (“BOP”) Financial
Responsibility Program (“FRP”).
Plaintiff informed Unit
Counselor Dixon (hereinafter “Defendant”) that he “had a court
ordered stay as to the fine imposed in his case” which Plaintiff
contends that other federal institutions had honored. (Compl. 2,
ECF No. 1).
Defendant placed Plaintiff on FRP Refusal Status
and instructed an officer at the Receiving and Discharge
Department to send Plaintiff’s “hobby craft material” to
Plaintiff’s son’s home address.
Plaintiff contends that there
is no provision which calls for removal of a prisoner from
participation in a hobby craft program when said prisoner is on
FRP Refusal Status.
Plaintiff concedes that one of the restrictions which can
be imposed as a result of a prisoner’s RFP Refusal Status is
being assigned the lowest housing status. (Compl. 3, ECF No. 1).
Plaintiff states that Defendant asked Plaintiff to show him
paperwork proving Plaintiff had a “bottom bunk pass.”
did, in fact, have bottom bunk passes from two other federal
institutions where he had been incarcerated and Plaintiff was
assigned a bottom bunk upon his arrival to FCI Fort Dix.
Defendant instructed Plaintiff to “go to the Medical Department
and renew his bottom bunk pass by July 15, 2012.” (Id.).
Defendant further informed Plaintiff that, if he did not have a
renewed bottom bunk pass by July 15, Defendant would move
Plaintiff to a top bunk.
Plaintiff states that on July 13, 2012, he went to the
Medical Department to renew his bottom bunk pass.
was informed that he would need an appointment to see a doctor
before he could renew his pass.
Plaintiff then visited
Defendant’s supervisor, Unit Manager Whritenour, to discuss the
It is unclear from the Complaint what was the result
of this discussion.
On July 15, 2012, Plaintiff was unable to produce a renewed
bottom bunk pass and Defendant indicated that he intended to
move Plaintiff to a top bunk.
Plaintiff told Defendant that he
didn’t see the need for reassignment given that there were two
vacant lower bunks in his living quarters.
that Defendant became “loud and verbally abusive” at this point
so Plaintiff walked out of Defendant’s office and returned to
his living quarters.
Plaintiff contends that Defendant followed Plaintiff to his
living quarters and continued to yell at Plaintiff.
further contends that Defendant “crowded Plaintiff against his
locker” and eventually instructed all other inmates in the room
to get out.
Defendant called for backup before pushing
Plaintiff backwards, bending him over a locker, and holding him
by his right arm.
Another officer then grabbed Plaintiff and
Plaintiff complained that Defendant had hurt his back.
Plaintiff was taken to the Medical Department where abrasions
were found on his back.
Plaintiff states that bruising was
still present ten days later.
As a result of this series of events, Plaintiff was “taken
to the Special Housing Unit and given an incident report for (1)
Assaulting any person; (2) refusing to obey an order and (3)
Insolence toward a staff member.” (Compl. 6, ECF No. 1).
Plaintiff asserts two causes of action.
First, he states
that Defendant violated 18 C.F.R. § 545.11 when he ordered that
Plaintiff’s hobby craft material be mailed to Plaintiff’s son.
Next, Plaintiff asserts a claim against Defendant for excessive
Plaintiff seeks nominal damages in the amount of $1.00
and punitive damages in the amount of $50,000.
the Court to declare Defendant’s actions in violation of 18
C.F.R. § 545.11, and he seeks attorneys’ fees and costs.
Having reviewed the Complaint, the Court determines that
dismissal of Plaintiff’s claims 28 U.S.C. § 1915A is not
warranted at this time.
Accordingly, pursuant to 42 U.S.C. §
1997e(g)(2), and as discussed below, Defendant shall be required
to respond to the Complaint.
B. Entry of Default
As explained above, an entry of default was entered against
Defendant Joseph Dixon.
For the reasons set forth below, the
entry of default will be vacated.
Plaintiff filed suit against Joseph Dixon in his individual
Because Defendant Joseph Dixon is an employee of the
government, service upon him is guided by Federal Rule of Civil
Rule 4(i)(3) requires that a plaintiff suing
a federal employee in his individual capacity also serve the
Service upon the United States is accomplished
by delivering a copy of the summons and the complaint by
certified mail to: (1) the civil-process clerk at the United
States Attorney's Office for the district in which the action
was brought, and (2) the Attorney General of the United States
in Washington, D.C. See FED. R. CIV. P. 4(i)(1); Mathies v.
Silver, 450 F. App'x 219, 221 (3d Cir. 2011).
Here, the summons as to Defendant Joseph Dixon was returned
executed on June 2, 2015 (ECF No. 15); the summons as to the
Attorney General was returned executed on June 8, 2015 (ECF No.
16); and the summons as to the United States Attorney’s Office
was returned executed on July 7, 2015 (ECF No. 17).
After service of a complaint, responsive pleadings are
governed by Rule 12.
As counsel for Defendant points out, when
a federal employee is sued in an individual capacity, a
responsive pleading must be served “within 60 days after service
on the officer or employee or service on the United States
attorney, whichever is later.” FED. R. CIV. P. 12(a)(3) (emphasis
Because the United States Attorney’s Office in this
case was served on July 7, 2015 (ECF No. 17), their responsive
pleading was not due until September 8, 2015. 2
Thus, the entry
of default on August 20, 2015 against Defendant Joseph Dixon was
premature and will be vacated.
C. Motion for Default Judgment (ECF No. 22)
As explained above, Defendant’s responsive pleading was not
due until September 8, 2015.
Therefore, the entry of default
against Defendant Joseph Dixon on August 20, 2015 was improper
and will be vacated.
As a corollary, Plaintiff’s Motion for
Default Judgment (ECF No. 22) will be DENIED.
D. Motion to Dismiss or, in the Alternative, for Summary
Judgment (ECF No. 20)
In lieu of filing an Answer, Defendant has filed “hybrid
motion” which counsel describes as a motion to dismiss pursuant
to Rule 12(b)(6) or, in the alternative, a motion for summary
The 60 day period initially results in a deadline of Sunday,
September 6, 2015. The following day, Monday, September 7,
2015, was a federal holiday. However, pursuant to FED. R. CIV. P.
6(a)(1)(C), “if the last day is a Saturday, Sunday, or legal
holiday, the period continues to run until the end of the next
day that is not a Saturday, Sunday, or legal holiday.”
Therefore, the proper deadline for Defendant’s response in this
case was Tuesday, September 8, 2015.
However, it is apparent from Defendant’s brief (ECF
No. 20-5) that a substantive ruling on the motion necessitates
consideration of matters outside the pleadings and, thus,
requires conversion of the motion to a motion for summary
judgment. See FED. R. CIV. P. 12(d).
Given that the Third Circuit has emphasized the importance
of notice requirements in the context of converting a motion to
dismiss into a motion for summary judgment, particularly when a
plaintiff is a pro se prisoner, see Renchenski v. Williams, 622
F.3d 315 (3d Cir. 2010), this Court is concerned with the
adequacy of the notice provided to Plaintiff in this case.
Moreover, this Court has reservations concerning the
appropriateness of such “hybrid motions” in general.
A court in
this district has discussed this issue and succinctly expressed
its disfavor for motions of this type:
Rule 12 authorizes and requires one pleading in
response to a complaint, i.e., an answer. See FED. R.
CIV. P. 12(a)(1) (A) (“A defendant must serve an
answer: (i) within 21 days after being served with the
summons and complaint; or (ii) if it has timely waived
service under Rule 4(d), within 60 days after the
request for a waiver was sent”); see also FED. R. CIV.
P. 7(a) (2). Rule 12(b), (e) and (f) require certain
motions to be made “before” filing an answer. Rule
12(b) provides that “[a] motion asserting any of the [
] defenses [specified in Rule 12(b)(1)-(6) ] must be
made before pleading if a responsive pleading is
allowed.” FED. R. CIV. P. 12(b). Rule 12(e) requires a
motion for a more definite statement to “be made
before filing a responsive pleading,” and Rule
12(f)(2) requires defendant to move to strike
redundant, immaterial, impertinent, or scandalous
matter “before responding to the pleading.” FED. R. CIV.
P. 12(e) and (f)(2).
The language of Rule 12(g) inhibits the joinder of
motions with a Rule 12 motion. See FED. R. CIV. P.
12(g)(1) (“A motion under this rule may be joined with
any other motion allowed by this rule”). Rule 12(d)
permits a district court to convert a motion under
Rule 12(b)(6) or 12(c) to a summary judgment motion
under limited circumstances and after notice to the
non-moving party. See FED. R. CIV. P. 12(d) (“If, on a
motion under Rule 12(b) (6) or 12(c), matters outside
the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material
that is pertinent to the motion”). But, as will be
explained, Rule 12 does not authorize a motion for
summary judgment or a motion to dismiss and for
summary judgment, as made in this case, to be filed in
lieu of an answer.
Rule 56 authorizes a party to file a summary judgment
motion at any time until 30 days after the close of
discovery, see FED. R. CIV. P. 56(b), provided the
motion identifies each claim, or part of each claim,
on which summary judgment is sought. See FED. R. CIV. P.
56(a) (“A party may move for summary judgment,
identifying each claim or defense—or the part of each
claim or defense—on which summary judgment is
Compliance with the notice requirements and joinder
limitations of Rules 12 and 56 is particularly
important where the plaintiff is a pro se prisoner.
See Renchenski v. Williams, 622 F.3d 315, 340–41 (3d
Cir. 2010). In Renchenski, the Third Circuit
instructed “State and Federal Governments, as well as
our district courts, [to] work together to ensure pro
se prisoner-plaintiffs receive adequate notice of an
imminent motion for summary judgment.” Renchenski, 622
F.3d at 340–41. To this end, Renchenski requires the
following notice for pro se prisoners whenever the
court converts a Rule 12(b)(6) motion to a Rule 56
We agree with the majority of our sister circuits
that adequate notice in the pro se prisoner context
includes providing a prisoner-plaintiff with a paper
copy of the conversion Order, as well as a copy of
Rule 56 and a short summary explaining its import
that highlights the utility of a Rule 56(f)
Renchenski, 622 F.3d at 340 (footnote omitted).
The Renchenski Court cited several decisions of sister
circuits with approval, including Lewis v. Faulkner,
689 F.2d 100, 101 (7th Cir. 1982). In Lewis v.
Faulkner, the district court dismissed a pro se
prisoner's civil rights complaint where, instead of
filing an answer, defendants filed “something called
‘Motion To Dismiss, Or In The Alternative, For Summary
Judgment.’” Lewis, 689 F.2d at 101. The Seventh
Circuit reversed the district court's order of
dismissal on the ground that “a prisoner who is a
plaintiff in a civil case and is not represented by
counsel is entitled to receive notice of the
consequences of failing to respond with affidavits” to
a hybrid motion to dismiss or for summary judgment.
Id. at 102. As the Seventh Circuit explained:
The lack of explicit notice would not be troubling
if it were obvious to a layman that when his
opponent files a motion for summary judgment
supported by affidavits he must file his own
affidavits contradicting his opponent's if he wants
to preserve factual issues for trial. But this
aspect of federal civil practice is contrary to lay
intuition, which is that the first step in a civil
litigation is the filing of a complaint, the second
the filing of an answer, and the third the trial of
the case. The defendants here filed no answer.
Their first pleading was the motion. It would not
be realistic to impute to a prison inmate ... an
instinctual awareness that the purpose of a motion
for summary judgment is to head off a full-scale
trial by conducting a trial in miniature, on
affidavits, so that not submitting counter
affidavits is the equivalent of not presenting any
evidence at trial. We credit the plaintiff with
knowing that if his case was tried and he failed to
present evidence he would lose.... But we do not
think he can be charged with the further knowledge
that a failure to offer affidavits when his opponent
files something called “Motion to Dismiss, Or In The
Alternative, For Summary Judgment” is an equivalent
Lewis, 689 F.2d at 101.
In this case, without having filed an answer, a hybrid
motion like the one filed here, does not comply with
the above described requirements of Rules 12 and 56 or
satisfy the Renchenski court's directive to provide
clear notice to pro se prisoners regarding what they
must do to avoid losing a summary judgment motion. Cf.
Woods v. Carey, 684 F.3d 934 (9th Cir. 2012)
(specifying contents of notice and holding that notice
must be provided at the time the summary judgment
motion is made); Bryant v. Madigan, 91 F.3d 994 (7th
Cir. 1996) (finding notice provided confusing and
inadequate). It follows from Renchenski and Rule 12
that a defendant should avoid filing a hybrid motion
to dismiss and/or for summary judgment of the sort
filed here, which creates unnecessary confusion for a
pro se litigant. Instead, as required by Rule 12, a
defendant must file either an answer or a motion under
Rule 12(b), (e), or (f)(2), within the time limits set
forth in Rule 12(a)(1)(A).
Visintine v. Zickefoose, No. 11-4678, 2012 WL 6691783, at *1-3
(D.N.J. Dec. 21, 2012).
This Court finds the analysis in Visintine, and the cases
cited therein, to be persuasive. See also Fuller v. FCI
Manchester Health Serv., No. 12-7025, 2015 WL 5032058 (D.N.J.
Aug. 24, 2015) (dismissing hybrid motion); Mazariegos v.
Monmouth Cnty. Corr. Inst., No. 12-5626, 2014 WL 1266659, at *5
(D.N.J. Mar. 25, 2014) (“a defendant should avoid filing a
hybrid motion to dismiss that does not comply with the governing
rules, and which creates unnecessary confusion for a pro se
litigant”); Laboy v. Ontario Cnty., N.Y., 56 F. Supp. 3d 255,
260 (W.D.N.Y. 2014) (same) (collecting cases); Rivera-Santiago
v. Abbott Pharm. PR, Ltd., 608 F. Supp. 2d 216, 223 (D.P.R.
2008) (prohibiting hybrid motions to “avoid the confusion and
delay associated with a ‘hybrid motion to dismiss and/or summary
Accordingly, this Court finds that Defendant’s motion in
this case is unnecessarily confusing, procedurally improper, and
inconsistent with the reasoning of Renchenski.
reasons, the Court will deny Defendant’s Motion to Dismiss or,
in the alternative, for Summary Judgment (ECF No. 20).
denial is without prejudice to Defendant refiling his motions as
separate, procedurally appropriate, filings.
E. Responsive Pleading
As set forth above, the Court determines that dismissal of
the Complaint is not warranted under 28 U.S.C. § 1915A at this
Further, the Court has denied Defendant’s Motion to
Dismiss or, in the alternative, for Summary Judgment.
Accordingly, Defendant will be required to submit a procedurally
appropriate responsive pleading no later than October 26, 2015.
For the foregoing reasons, the entry of default against
Defendant Joseph Dixon will be vacated and Plaintiff’s Motion
for Default Judgment (ECF No. 22) is denied.
Defendant’s Motion to Dismiss or, in the alternative, for
Summary Judgment (ECF No. 20) is denied without prejudice.
Defendant is free to refile his motions as separate,
procedurally appropriate, filings.
The Complaint will not be
dismissed as a result of the Court’s sua sponte screening and
Defendant will be required to submit a procedurally appropriate
responsive pleading no later than October 26, 2015.
An appropriate Order will be entered.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: October 6, 2015
At Camden, New Jersey
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