GOLDBERG v. UNITED STATES OF AMERICA et al
Filing
28
MEMORANDUM OPINION AND ORDER Denying Plaintiff's 16 Motion for Protective Order and Plaintiff's 26 Motion for Default Judgment., etc. Signed by Judge Noel L. Hillman on 12/20/2018. (rss, n.m and 285 form sent)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARK GOLDBERG,
Plaintiff,
1:17-cv-06024-NLH-JS
MEMORANDUM OPINION
AND ORDER
v.
UNITED STATES OF AMERICA, et
al.,
Defendants.
IT APPEARING THAT:
1.
Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A,
because Plaintiff is proceeding in forma pauperis and is
incarcerated, the Court screened Plaintiff’s complaint for
dismissal and determined that the complaint states a First
Amendment access to courts claim and a Fifth Amendment due
process claim pursuant to Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 386 (1971), against
Defendants David Ortiz, Caryn Flowers, Laura Coleman, Ms.
Clarke, Rashawn Robinson, James Reiser, Mr. N. Mullins, Ms. M.
Fischer, Ms. Centano, and Mr. T. Vogt.
2.
(Docket No. 8.)
Currently pending are two motions filed by Plaintiff.
The first motion is for a protective order against Defendant
Michelle Fischer because she allegedly sexually assaulted
Plaintiff during a body search.
(Docket No. 16.)
The second
motion is for the entry of default by the Clerk’s office
against all the Defendants for their failure to appear in the
action despite valid service of process.
(Docket No. 26.)
3.
The Court must deny both of Plaintiff’s motions.
4.
As for Plaintiff’s motion for the entry of default, in
the Court’s complaint screening Order, the Court directed the
Clerk to mail Plaintiff a transmittal letter explaining the
procedure for completing Unites States Marshal (“Marshal”) 285
Forms (“USM-285 Forms”), and the Court instructed that once the
Marshal received the USM-285 Forms from Plaintiff and the Marshal
so alerted the Clerk, the Clerk was to issue summons in connection
with each submitted USM-285 Form.
Thereafter, the Marshal was to
serve summons, the Complaint and the Order to the address
specified on each USM-285 Form, with all costs of service advanced
by the United States.
(Id.)
The Clerk complied with the Court’s
Order, and Plaintiff completed and returned the 285 Forms, but not
for all the parties who must be served.
5.
Pursuant to Fed. R. Civ. P. 4(i)(3), a plaintiff suing
a federal employee in his individual capacity must effect
service in three parts: (1) Plaintiff must serve the individual
employee under Rule 4(e), (f), or (g), and Plaintiff must serve
the United States by serving (2) the “United States attorney
for the district where the action is brought,” and (3) the
“Attorney General of the United States at Washington, D.C.”
2
under Rule 4(i)(1).
6.
Plaintiff has only satisfied two of the three parts to
properly effect service.
The returns of service filed by the
U.S. Marshals Service state that the summons and complaint have
been served on the individually named Bureau of Prisons
employees (Docket No. 14), and the U.S. Attorney General in
Washington, D.C.
(Docket No. 24).
Plaintiff has not served
the U.S. Attorney’s Office for the District of New Jersey. 1
7.
This Court cannot order the Clerk to enter default
against any Defendant without valid service of process in
accordance with Rule 4(i)(1).
See Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (providing that
(1) an “individual or entity named as a defendant is not obliged
to engage in litigation unless notified of the action, and
brought under a court’s authority, by formal process,” (2)
“service of process, under longstanding tradition in our system
of justice, is fundamental to any procedural imposition on a
named defendant,”
and (3) “[i]n the absence of service of
process (or waiver of service by the defendant), a court
1
In a May 10, 2018 letter to the Court and copied to Plaintiff,
the U.S. Attorney’s Office for the District of New Jersey informed
Plaintiff of his deficiency in failing to serve the U.S. Attorney
General and the District of New Jersey U.S. Attorney’s Office, and
explained the steps Plaintiff needed to take to properly serve
them. (Docket No. 17.) It appears that Plaintiff followed up by
completing and returning a 285 Form for the U.S. Attorney General,
but not for the U.S. Attorney’s Office for the District of New
Jersey.
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ordinarily may not exercise power over a party the complaint
names as defendant”).
8.
With regard to Plaintiff’s motion for a protective
order, the Court first finds that Plaintiff’s claim regarding a
sexual assault is outside the scope of his current complaint,
and the Court therefore cannot provide Plaintiff with a remedy
for a claim that is not before the Court.
Should Plaintiff
wish to pursue such a claim, he must seek leave of Court to
file an amended complaint pursuant to Fed. R. Civ. P. 15 or
file a new action. 2
9.
To the extent that Plaintiff’s complaint can be
construed to encompass that claim, and the Court further
construes Plaintiff’s motion for a protective order to be an
ex-parte temporary restraining order (“TRO”) or preliminary
injunction application, his application is both procedurally 3
2
The Court expresses no opinion on the merits or viability on any
new action if filed.
3
Federal Rule of Civil Procedure 65 limits the Court’s ability to
issue a TRO to instances when: (i) the “specific facts in an
affidavit or a verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the” party
seeking the TRO and (ii) the party seeking the TRO “certifies in
writing any efforts made to give notice and the reasons why it
should not be required.” Fed. R. Civ. P. 65(b)(1). Plaintiff has
not met either of these requirements and his application could be
denied on that basis alone. However, given that Plaintiff is a
prisoner appearing pro se the Court will separately address why
his application should be denied for failure to meet the
substantive standard for the extraordinary remedy of injunctive
relief even if the application had been properly supported by
4
and substantively defective.
10.
To secure the extraordinary relief of a preliminary
injunction or TRO, Plaintiff must demonstrate that “(1) he is
likely to succeed on the merits; (2) denial will result in
irreparable harm; (3) granting the injunction will not result
in irreparable harm to the defendants; and (4) granting the
injunction is in the public interest.”
Maldonado v. Houston,
157 F.3d 179, 184 (3d Cir. 1998), cert. denied, 526 U.S. 1130
(1999) (as to a preliminary injunction); see also Ballas v.
Tedesco, 41 F. Supp. 2d 531, 537 (D.N.J. 1999) (as to temporary
restraining order).
A plaintiff must establish that all four
factors favor preliminary relief.
See Opticians Ass'n of
America v. Independent Opticians of America, 920 F.2d 187 (3d
Cir. 1990).
11.
Plaintiff relates in his motion, “On April 27, 2018,
the Defendant Correctional Counselor Ms. Michelle Fischer was
conducting a body search on the Plaintiff Mark Goldberg.
In
the Defendant’s body search, she patted down to Goldberg’s
penis area and stopped.
Goldberg’s penis.
She grabbed and then[n] squeezed
Defendant then stated ‘What is this?’
Goldberg stood silent and Fischer resumed her search.”
(Docket
No. 16 at 2.)
12.
Plaintiff states that he reported this sexual assault
evidence and otherwise procedurally sound.
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and that there is a criminal investigation being conducted.
Plaintiff further states that he will press charges against
Fischer.
13.
(Id.)
Plaintiff’s request for a protective order does not
meet the requirements for injunctive relief because Plaintiff
has not articulated how any of those elements have been met.
14.
Specifically with regard to how the denial of a TRO
or injunction will result in irreparable harm to Plaintiff, it
appears that Plaintiff has not suffered a similar subsequent
incident since that time, and it further appears that
Plaintiff’s complaint about his sexual assault is being
actively investigated by the authorities.
Without more
evidence, the Court cannot find that he will continue to be
harmed in the described manner if the Court does not enter a
TRO against the Defendant.
15.
Moreover, Plaintiff’s alleged injury appears to be
compensable monetarily as opposed to harm that is not
redressable with money, and as such, he has presented an injury
that does not qualify for injunctive relief.
See A. O. Smith
Corp. v. F. T. C., 530 F.2d 515, 525 (3d Cir. 1976) (citation
and quotations omitted) (“The requisite [for irreparable
injury] is that the feared injury or harm be irreparable - not
merely serious or substantial.
The word means that which
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cannot be repaired, retrieved, put down again, atoned for. . .
. Grass that is cut down cannot be made to grow again; but the
injury can be adequately atoned for in money.
The result of
the cases fixes this to be the rule: the injury must be of a
peculiar nature, so that compensation in money cannot atone for
it.”).
Plaintiff has failed to show that he would not have a
remedy at law for the alleged wrongdoing.
16.
In sum, absent evidence of continuing and imminent
harm and the unavailability of money relief for any past harm
if proven, Plaintiff has failed to meet the standard for
injunctive relief under Federal Rule of Civil Procedure 65.
THEREFORE,
IT IS on this
20th
day of
December
, 2018
ORDERED that Plaintiff’s MOTION for Protective Order [16]
and MOTION for Entry of Default [26] be, and the same hereby are,
DENIED; and it is further
ORDERED that the Clerk shall mail to Plaintiff an additional
285 Form for Plaintiff to complete as to the U.S. Attorney’s
Office for the District of New Jersey and return to the U.S.
Marshals Service within 30 days.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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