GOLDBERG v. UNITED STATES OF AMERICA et al

Filing 68

ORDER granting 65 Motion for Leave to File an Amended Complaint. Signed by Magistrate Judge Sharon A. King on 8/11/21. (dd, )

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[ECF No. 65]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MARK GOLDBERG,
Plaintiffs,

Civil No. 17-6024 (NLH/SAK)

v.
UNITED STATES OF AMERICA, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court by way of a Motion for Leave to File an Amended
Complaint [ECF No. 65] (“Motion”) by Plaintiff Mark Goldberg (“Plaintiff”). Defendants, David
Ortiz, Carolyn Flowers, Laura Coleman, Ms. Clarke, Rashawn Robinson, James Reiser, Mr. N.
Mullins, Ms. M. Fisher, Ms. Centano, and Mr. T. Vogt (collectively “Defendants”), neither object
nor consent. See Letter from U.S. Regarding Pl.’s Mot. [ECF No. 66].

The Court exercises its

discretion to decide the motion without oral argument. See FED. R. CIV. P. 78; L. CIV. R. 78.1.
For the reasons set forth herein, it is hereby Ordered that Plaintiff’s Motion is GRANTED.
DISCUSSION
Plaintiff’s claims stem from alleged violations of his First and Fifth Amendment rights.
See Compl. [ECF No. 1]. Plaintiff commenced this action as a pro se litigant on August 10, 2017,
by filing a complaint and application to proceed in forma pauperis. Id. Plaintiff’s complaint
alleged that Defendants caused him to miss court hearings, resulting in the termination of his
parental rights to his son, N.G. Id. at ¶ 3.
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After curing certain procedural defects, Plaintiff was permitted to proceed with his
complaint as to the First Amendment access to court and Fifth Amendment due process claims
brought pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S.
386 (1971). See Mem. and Order Granting Pl.’s Appl. [ECF No. 8]. Claims against the United
States of America and the Federal Bureau of Prisons were dismissed based on immunity. Id.
Perfected service on the defendants was made on May 9, 2019. See Summons Returned Executed
[ECF Nos. 14, 24, 30]. On July 21, 2019, Defendants filed an answer to Plaintiff’s complaint. See
Defs.’ Answer [ECF No. 35]. On October 25, 2019, Defendants filed a motion for judgment on
the pleadings. See Mot. for J. [ECF No. 45].
Between February 5, 2018, and July 6, 2020, Plaintiff filed multiple motions seeking
appointment of pro bono counsel. See Plt.’s Mot. to Appoint Pro Bono Counsel [ECF Nos. 10,
37, 50, 54]. The Court ultimately appointed pro bono counsel on September 16, 2020. See Order
Granting Pro Bono [ECF No. 55]. Thereafter, on October 2, 2020, the Court denied without
prejudice Plaintiff’s motion for judgment on the pleadings. See Mem. Op. and Order Denying Mot.
for J. [ECF No. 56]. The Hon. Noel L. Hillman, U.S.D.J. stated that since an attorney was going
to be appointed for Plaintiff, “justice required providing assigned counsel an opportunity to
become familiar with the case.” Id. On October 8, 2020, Chiesa Shahinian & Giantomasi P.C. was
appointed counsel for Plaintiff. See Letter Order [ECF No. 57]. The Court held a scheduling
conference on April 7, 2021, and issued an Order allowing Plaintiff until June 25, 2021, to file a
motion for leave to amend his complaint. See Scheduling Order [ECF No. 63]. Pursuant to that
Order, all further scheduling would depend on the outcome of Plaintiff’s motion to amend. Id.
On June 25, 2021, Plaintiff filed his first motion for leave to amend the complaint, presently
before the Court. See Motion. Plaintiff seeks to amend the complaint to detail with greater
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specificity, his exhaustion of administrative remedies and the conduct of Defendants that form the
basis of his claims. Id. Additionally, Plaintiff seeks to remove Defendants Laura Coleman, Ms.
Clarke, and Rashawn Robinson, as they were not personally involved in the alleged unlawful
conduct. Id. Lastly, Plaintiff seeks to add a new Defendant Jordan Hollingsworth, who Plaintiff
alleges was personally involved in the alleged unlawful conduct. Id. Counsel for Defendants filed
a letter advising the Court that while they do not oppose Plaintiff’s motion, they are unable to
consent due to the nature of the alleged claims. See Letter from U.S. Regarding Pl.’s Mot. [ECF
No. 66].
ANALYSIS
Pursuant to Fed. R. Civ. P. 15(a)(2), leave to amend pleadings “shall be freely given when
justice so requires.” “This liberal amendment philosophy limits the district court’s discretion to
deny leave to amend.” Adams v. Gould Inc., 739 F.2d 585, 864 (1984). A court should allow a
party to amend its pleading so long as there is no undue delay, bad faith, dilatory motive, undue
prejudice or futility of the amendment. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
“Absent undue or substantial prejudice . . . [denial must] be grounded in bad faith or dilatory
motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments
previously allowed or futility of amendment.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004)
(quoting Lundy v. Adamar of N.J., Inc., 34 F.3d 1173, 1196 (3d Cir. 1994)).
Here, the Court finds that Plaintiff’s amendments are not grounded in bad faith, dilatory
motives, or undue delay. Plaintiff was appointed counsel on October 8, 2020. Judge Hillman then
provided counsel with “an opportunity to become familiar with the case.” Following a conference
with all the parties on April 7, 2021, Plaintiff timely moved to amend pursuant to the Court Order
[ECF No. 63]. Plaintiff’s proposed amended complaint addresses many of the deficiencies noted
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in Defendants’ motion for judgment on the pleadings [ECF No. 45]. Additionally, Defendants do
not oppose Plaintiff’s motion.
The Court also does not find Plaintiff’s amendments to be futile. In assessing futility, the
District Court applies the same standard of legal sufficiency as applies under Fed. R. Civ. P.
12(b)(6). Travelers Indemnity Co. v. Dammann & Co., Inc., 594 F.3d 238, 243 (3d Cir. 2010)
(citation omitted), see also, Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (stating an
amendment is futile if the amended complaint would not survive a motion to dismiss for failure to
state a claim upon which relief could be granted). Pursuant to Fed. R. Civ. Pro. 8(a)(2), a pleader
must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.”
The Court must accept as true all well-pled factual allegations raised in a movant’s pleadings, and
must determine whether the facts as alleged raise a facially plausible claim on the grounds asserted.
Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011). A pleading need not provide
detailed factual allegations but must provide facts sufficient to show a plausible cause of action.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). This standard requires showing “more than a sheer possibility that a [party] has
acted unlawfully.” Burthch v. Milberg Factors, Inc., 662 f.3d 212, 221 (2011) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. at 557). Where plausible fact allegations support each
element of the proposed claim, the amendment is not futile. Santiago v. Warminster Twp., 629
F.3d 121, 130 (3d Cir. 2010).
In reviewing Plaintiff’s proposed first amended complaint, the Court finds that Plaintiff
has provided “a facially plausible claim on the grounds asserted.” Plaintiff provides specific
details regarding the alleged actions and inactions of the individual defendants to support his First
and Fifth Amendment claims. Plaintiff chronicles the requests and responses allegedly received
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from the individual defendants leading to and following the termination of his parental rights.
Additionally, Plaintiff’s proposed amended complaint omitted Defendants not personally involved
in the matter. The proposed amended complaint also articulately specified the claims for relief.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Leave to File an Amended Complaint
[ECF No. 65] is hereby GRANTED.

IT IS THEREFORE ORDERED this 11th day of August 2021, that Plaintiff’s Motion
for Leave to File an Amended Complaint [ECF No. 65] is GRANTED; it is further
ORDERED that Plaintiff shall file and serve his First Amended Complaint in accordance
with the Federal Rules of Civil Procedure by August 20, 2021. Defendants shall answer, move,
or otherwise respond by September 30, 2021.

s/ Sharon A. King
.
SHARON A. KING
United States Magistrate Judge

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