SCANLON v. LAWSON et al

Filing 171

OPINION (REDACTED). Signed by Judge Renee Marie Bumb on 3/9/2020. (dmr)

NOT FOR PUBLICATION

ECF NOS. 158, 159
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

EDWARD SCANLON, IV
Plaintiff

Civ. No. 16-4465 (RMB-JS)

v.
VALERIE LAWSON, et al.,

OPINION
(REDACTED)

Defendants
APPEARANCES:
KEVIN T. FLOOD, Esq.
181 Route 206
Hillsborough, NJ 08844
On behalf of Plaintiff
JUSTIN ROBERT WHITE
TESTA HECK TESTA & WHITE, PA
424 W. LANDIS AVENUE
VINELAND, NJ 08360

BUMB, United States District Judge
This matter comes before the Court upon Plaintiff’s motion
for reconsideration (Mot. Reconsider., ECF No. 158) of this Court’s
opinion and order granting Defendant Wesley Jordan’s motion for
summary judgment based on the statute of limitations (See Opinion,
ECF No. 151; Order, ECF No. 152); Defendant Jordan’s response to
Plaintiff’s motion for reconsideration (Jordan’s Resp. to Mot.
Reconsider., ECF No. 161); Plaintiff’s motion to seal his motion
for reconsideration (Mot. to Seal, ECF No. 159); and Plaintiff’s

Response to Order to Show Cause, (Pl’s Response OTSC, ECF Nos.
162, 164.) Pursuant to Federal Rule of Civil Procedure 78(b), the
Court

will

determine

the

motions

on

the

briefs

without

oral

argument.
I.

BACKGROUND
Plaintiff filed this action in the New Jersey Superior Court,

Law Division, Cumberland County on March 29, 2016, alleging civil
rights violations under 42 U.S.C. § 1983; the New Jersey Civil
Rights Act (“NJCRA”), § 10:6-2, and tort claims under the New
Jersey law, N.J.S.A. §§ 59:1-1 et seq. (Compl., ECF NO. 1-1 at 818.) The action, in part, arose out of incidents alleged to have
occurred

at

the

Cumberland

County

Juvenile

Detention

Center

(“CCJDC”) in March 2012. (Id.) Plaintiff alleged
[O]n or about March 2, 2012 through March 5,
2012, Plaintiff was made to fight other
inmates at the Cumberland County Detention
Center whereby he suffered serious injuries
solely for the enjoyment and entertainment of
Cumberland County Detention guards, who were
instead responsible to safeguard the minor.
(Id., ¶3.)
Plaintiff filed an amended complaint on October 26, 2017.
(Am. Compl., ECF Nos. 58, 88.) The amended complaint substituted
Wesley Jordan for a fictitious John Doe defendant. The Court
subsequently

granted

Jordan’s

motion

for

summary

judgment,

holding, in pertinent part, that the amended complaint did not
relate back to the timely filed complaint because Plaintiff did
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not exercise due diligence in discovering Jordan’s identity. See
DeRienzo v. Harvard Industries, Inc., 357 F.3d 348, 354-55 (3d
Cir. 2004) (describing due diligence requirement of New Jersey
Court Rule 4:26-4.)
II.

PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE
On February 21, 2020, the Court ordered Plaintiff to show

cause why the claims against Harold Cooper, Bobby Stubbs, John and
Jane Does 1-45 and ABC Corporations 1-45 should not be dismissed
for failure to effect timely service under Federal Rule of Civil
Procedure 4(m). (Order, ECF No. 157.) Plaintiff responded by
demonstrating the numerous attempts he made to locate and serve
Bobby Stubbs and Harold Cooper. (Pl’s Response to OTSC, ECF Nos.
162, 164.)
Plaintiff’s last attempt at service on Bobby Stubbs and Harold
Cooper was August 2, 2018, more than one year ago. (Id., ¶¶29-31.)
Plaintiff’s has not shown good cause to further extend the time to
serve

Harold

Cooper,

Bobby

Stubbs

or

the

unidentified

Doe

Defendants. Although the statute of limitations expired, which
favors

granting

a

motion

for

extension

of

time

for

service,

Plaintiff’s inaction for more than one year, and the fact that the
case is ready for a final pretrial conference, disfavors further
extension of time for service. The Court will deny an extension of
time for service under Rule 4(m) and dismiss the claims against
the unserved defendants without prejudice. See Veal v. United
3

States, 84 F. App’x 253, 256-57 (3d Cir. 2004) (noting district
court has discretion to extend time for service even though good
cause was not shown)).
III. MOTION TO SEAL MOTION FOR RECONSIDERATION
Plaintiff submitted the following information in support of
sealing his motion for reconsideration and supporting documents
pursuant to Local Civil Rule 5.3(c). (Certification of Counsel,
nature of materials to be sealed include

ECF No. 159-1.) The

medical and juvenile records produced pursuant to a Discovery
Confidential Order, which are cited and/or attached to Plaintiff’s
motion for reconsideration. The privacy interests that warrant
sealing the documents include the protection of medical records
under

federal

deliberative

and

state

information

law,

and

developed

privacy
as

part

of
of

evaluative

and

self-critical

analysis. These privacy interests are lost if the records are not
sealed. There have been four prior orders to seal these types of
documents in this matter. Finally, counsel to defendant Wesley
Jordan consents to sealing these documents. Plaintiff has met his
burden to warrant sealing his motion for reconsideration and
supporting documents.
IV.

Plaintiff’s Motion for Reconsideration
Plaintiff asserts three bases for the Court to reconsider

granting

summary

judgment

to

Defendant

Wesley

Jordan.

First,

Plaintiff asserts that the Court overlooked the fact that Plaintiff
4

was a deeply mentally and behaviorally impaired juvenile who was
“indefinitely” incarcerated, which severely hindered Plaintiff’s
ability to assist his counsel in proceeding with this civil cause
of action. Plaintiff submits, as new evidence in support of this
claim, records from the New Jersey School for Boys (Jamesburg) for
2014 and 2015. (Ex. A, ECF No. 158-2 at 5.)
Second, Plaintiff argues it was a manifest error of law to
make the finding that records identifying Wesley Jordan were
potentially available through a request under the New Jersey Open
Public Records Act, N.J.S.A. § 47:1A-5. Plaintiff’s counsel states
that the only way he could obtain records identifying Jordan as
Plaintiff’s
Plaintiff’s

abuser
mental

was
and

to

file

suit,

behavioral

which
issues

was

hindered

and

by

indefinite

incarceration.
Third, Plaintiff maintains that it was a manifest error of
fact

to

find

that

plaintiff’s

counsel

delayed

amending

the

complaint after receiving discovery identifying Wesley Jordan as
Plaintiff’s

abuser.

And

fourth,

Plaintiff

contends

it

was

a

manifest error of law to apply federal case law and F.R.C.P.
15(c)(1)(C) to his New Jersey state law claims because Wesley
Jordan was put on notice of the tort and civil rights causes of
action under state law, as evidenced by the fax confirmation and
the signed return receipt requested green cards from September 21,
2012.
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Defendant

Wesley

Jordan

opposes

Plaintiff’s

motion

for

reconsideration. (Def. Jordan’s Resp. to Mot. Reconsider., ECF No.
161.) First, pursuant to Local Civil Rule 7.1(i)’s 14-day time
limit, Jordan argues the motion for reconsideration was filed one
day late, fifteen days after the order to be reconsidered was
entered on February 6, 2020, Second, Jordan contends the motion
should be denied in substance because the Court did not overlook
facts or law in granting Jordan’s motion for summary judgment. The
Court

will

address

the

merits

of

Plaintiff’s

motion

for

reconsideration.
B.

Standard of Review

Generally, a motion for reconsideration is treated as a motion
to alter or amend judgment under Federal Rule of Civil Procedure
59(e). Holsworth v. Berg, 322 F. App’x 143, 146 (3d Cir. 2009).
Local Civil Rule 7.1(i) governs motions for reconsideration in the
District of New Jersey. Local Civil Rule 7.1(i) permits a party to
seek reconsideration by the Court of matters which the party
“believes the Judge or Magistrate Judge has overlooked” when it
ruled on the motion.
The

movant

must

demonstrate

either:

“(1)

an

intervening

change in the controlling law; (2) the availability of new evidence
that was not available when the court [issued its order]; or (3)
the need to correct a clear error of law or fact or to prevent
manifest injustice.” Max's Seafood Café v. Quinteros, 176 F.3d
6

669, 677 (3d Cir. 1999) (citing N. River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). “A motion for
reconsideration should not provide the parties with an opportunity
for a second bite at the apple.” Tishcio v. Bontex, Inc., 16
F.Supp.2d 511, 532 (D.N.J. 1998) (citation omitted).
C.

Analysis
1.

Plaintiff’s Impairments

Plaintiff asserts that the Court overlooked the fact that his
severe impairments hindered his ability to assist his counsel in
proceeding with this action. The Court did not overlook Plaintiff’s
impairments but instead accepted as true Plaintiff’s allegation
that he could not identify his abuser by name. The Court also
accepted that Plaintiff’s father received only a redacted report
from DCF and that CCJDC would not provide him with Jordan’s name.
The redacted DCF report, however, provided sufficient information
to establish Plaintiff’s cause of action against Jordan; only his
true identify remained confidential. Thus, counsel could have
proceeded

by

obtaining

Jordan’s

name

in

another

manner,

as

discussed below.
The record shows that, although severely impaired, Plaintiff
was not incompetent from 2012 through 2016. True, Plaintiff had
previously

been

found

incompetent

in

juvenile

delinquency

proceedings. (Pl’s Ex. M, ECF No. 130-8 at 100-101.)

But in April

2012, when represented by his current counsel, Plaintiff was
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competent to plead guilty to juvenile delinquency charges, and
apparently competent to assist counsel in that matter. (Pl’s Ex.
M, ECF No. 130-8 at 100-101.)
The new records submitted by Plaintiff’s counsel support the
conclusion that Plaintiff’s behavioral issues were severe in 2014
and 2015, as he accrued new charges for assault and threats of
sexual assault. Notwithstanding that Plaintiff was confined in a
mental health unit, the records do not shed light on Plaintiff’s
ability to assist counsel in bringing this suit. To the contrary,
the records shows that when Plaintiff was nineteen years and six
months old, he had the capacity to voluntarily request transfer
from the Juvenile Justice Commission to the New Jersey Department
of Corrections, where he could receive clinical treatment as an
adult. (Ex. A, ECF No. 158-2 at 8-11.) The new evidence does not
support

counsel’s

claim

that

Plaintiff’s

mental

impairments

prevented him from assisting counsel with filing this action
sooner.
Further,

there

is

nothing

in

the

record

to

show

that

Plaintiff’s counsel ever informed this Court, upon filing the
complaint two days before the statute of limitations expired, of
the difficulties he had discovering John Doe’s identity and the
urgency of his need for the information. It is too late now for
the Court to provide assistance.

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2.

Availability of OPRA Request

Plaintiff contends it was a manifest error of law for the
Court to make the finding that records identifying Wesley Jordan
were potentially available through a request under the New Jersey
Open Public Records Act, N.J.S.A. § 47:1A-5. First, the Court notes
that

it

recognized

Plaintiff’s

counsel

might

have

been

unsuccessful in obtaining the necessary documents, but that the
due diligence requirement of New Jersey Court Rule 4:26-4 obliged
him to make the effort. (Opinion, ECF No. 151 at 26.)
Second, Plaintiff cites Doe v. City of Trenton, No. A594317T2, 2019 WL 4927108 (N.J. Super. Ct. App. Div. Oct. 7, 2019) in
support of his claim that internal affairs investigations are
exempt

from

disclosure

by

OPRA

request.

Plaintiff

fails

to

acknowledge that Doe also provides guidance on the common law right
of access to public records, which “makes a much broader class of
documents available … but on a qualified basis.” Id. at *5 (quoting
O’Shea v. Twp. of W. Milford, 982 A.2d 459, 468 (N.J. Super. Ct.
App. Div. 2009) (quoting Daily Journal v. Police Dept. of City of
Vineland, 797 A.2d 186 (N.J. Super. Ct. App. Div. 2002)).
The common law right of access to public records is subject
to a balancing test based on factors specific to each case. Id.
Given

plaintiff’s

counsel’s

inability

to

obtain

John

Doe’s

identity from his client and the difficulty Plaintiff’s father had
in obtaining that information, Plaintiff could have presented a
9

good case for disclosure under the common law, even if he might
have been unsuccessful. Again, due diligence does not permit doing
nothing.
3.

Delay Amending the Complaint

Plaintiff asserts that it was a manifest error of fact for
the Court to find that plaintiff’s counsel delayed amending the
complaint after receiving discovery identifying Wesley Jordan as
Plaintiff’s abuser. The Court accepts Plaintiff’s representation
that Magistrate Judge Schneider imposed a de facto stay on amending
the complaint based on Plaintiff’s representation that he might
have to amend twice because discovery remained pending. This,
however, does not change the result.
To establish due diligence under New Jersey Court Rule 4:264, for purposes of relation back of an Amended Complaint under
Federal Rule of Civil Procedure 15(c)(1)(A), a plaintiff must
exercise

due

diligence

before

and

after

filing

the

original

complaint. DeRienzo, 357 F.3 at 353 (emphasis added). In June 2012,
the redacted DCF report given to Plaintiff’s father, and then
provided

to

information

plaintiff’s
to

bring

counsel,

suit

using

contained
the

enough

fictitious

factual
John

Doe

designation. (Pl’s Ex. B, ECF No. 130-8 at 5-6.) Plaintiff’s
counsel has not shown that he did anything other than ask Plaintiff
and

his

father

to

identify

Plaintiff’s

abuser,

which

was

unsuccessful in 2012. The record does not contain evidence that
10

Plaintiff’s counsel did anything to identify John Doe in the next
four years; instead, filing suit with only two days remaining on
the statute of limitations. While the Court is sympathetic to
Plaintiff’s plight, the record does not support a finding of due
diligence.
4.

Plaintiff’s Tort Claims

Plaintiff also claims it was a manifest error of law for the
Court to apply federal case law and F.R.C.P. 15(c)(1)(C) to his
New Jersey state law claims 1 because Jordan was put on notice of
Plaintiff’s claims by his Tort Claim Notice of September 1, 2012.
(See Ex. B, ECF No. 158-2 at 18-19.)
The Court did not apply Federal Rule of Civil Procedure
15(c)(1)(C) to determine whether Plaintiff filed a timely notice
of claim under the New Jersey Tort Claims Act, N.J.S.A. § 59:8-8,
but instead, to determine whether his state law claims against
Jordan related back to his original complaint so as to avoid the

1

“Rule 15(c)(1) allows state relation back law to govern state
claims in federal court if state law ‘affords a more forgiving
principle of relation back.’” Yanez v. Columbia Coastal Transp.,
Inc., 68 F.Supp.2d 489, 491 n. 2 (D.N.J. 1999) (citing Bryan v.
Associated Container Transp., 837 F. Supp. 633, 643 (D.N.J. 1993)
(quoting Advisory Committee note to Fed. R. Civ. P. 15(c)(1)). In
the opinion dated February 6, 2020, the Court determined that New
Jersey state law did not provide for relation back because
Plaintiff did not exercise due diligence in discovering John Doe’s
identity. Thus, the Court considered whether, in the alternative,
Federal Rule of Civil Procedure 15(c)(1)(C) provided for relation
back.

11

statute of limitations bar. Under Federal Rule of Civil Procedure
15(c)(1)(C), even if the Notice of Tort Claim was timely submitted
to Surrency and Baruzza at CCJDC in September 2012, notice to
Jordan’s supervisors of his state law claim was insufficient to
impute notice to Jordan of this lawsuit filed in 2016. Singletary
v. Pennsylvania Dept. Corrections, 266 F.3d 186, 198 (3d Cir. 2001)
(notice to employer was insufficient to impute notice to staff
level employee); Garvin v. City of Philadelphia, 354 F.3d 215, 217
(3d Cir. 2003) (same).
IV.

CONCLUSION
For the reasons discussed above, the Court will (1) dismiss

the claims against Harold Cooper, Bobby Stubbs, John and Jane Does
1-45 and ABC Corporations 1-45 without prejudice under Federal
Rule of Civil Procedure 4(m); (2) grant Plaintiff’s motion to seal
his motion for reconsideration and supporting documents; and (3)
deny Plaintiff’s motion for reconsideration.

An appropriate order follows.
Date:

March 9, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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