TUTTLE v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Renee Marie Bumb on 2/17/2021. (tf, n.m.)
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RONALD H. TUTTLE,
UNITED STATES OF AMERICA,
CIV. NO. 20-2523 (RMB-KMW)
This matter comes before the Court upon Plaintiff’s motions
for default judgment and preliminary injunctive relief (Dkt. Nos.
33, 34) in this action under the Federal Tort Claims Act.
reasons discussed below, the Court denies Plaintiff’s motions.
Plaintiff, Ronald H. Tuttle, a prisoner confined in the
Federal Correctional Facility in Oakdale, Louisiana, acting pro
se, filed this Federal Tort Claim action on March 9, 2020. (Compl.,
Dkt. No. 1.) Upon receipt of the filing fee, the Court permitted
the complaint to proceed, after screening for dismissal pursuant
to 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c)(1). (Order, Dkt. No.
19.) On December 11, 2020, Plaintiff submitted a summons returned
as executed on the United States’ Attorney’s Office. (Dkt. No.
Proper service on the United States of America requires a party
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Motion for Default Judgment
Sourcecorp Inc. v. Croney, 412 F. App'x 455, 458 (3d Cir. 2011).
First, a party must seek entry of default by the Clerk of Court
under Federal Rule of Civil Procedure 55(a), which provides:
when a party against whom a judgment for
affirmative relief is sought has failed to
plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk
must enter the party's default.
Second, a party must apply to the court to convert the default
(A)(i) deliver a copy of the summons and of
the complaint to the United States attorney
for the district where the action is brought-or to an assistant United States attorney or
clerical employee whom the United States
attorney designates in a writing filed with
the court clerk—or
(ii) send a copy of each by registered or
certified mail to the civil-process clerk
at the United States attorney's office;
(B) send a copy of each by registered or
certified mail to the Attorney General of the
United States at Washington, D.C.
Fed. R. Civ. P. 4(i)(A), (B). Plaintiff has not shown that he sent
a copy of the summons and complaint to the Attorney General of the
United States by registered or certified mail, addressed to:
Attorney General, U.S. Department of Justice, 950 Pennsylvania
Avenue, NW Washington, DC 20530-0001. If Plaintiff has not done
so, he will need to seek an extension of time, under Federal Rule
of Civil Procedure 4(m), to complete service upon the United
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into a default judgment. Fed. R. Civ. P. 55(b)(2). When default
judgment is sought against the United States, the claimant “must
establish a claim or right to relief by evidence that satisfies
the court.” Fed. R. Civ. P. 55(d).
Plaintiff did not obtain a default from the Clerk prior to
seeking default judgment with the Court. Therefore, the Court will
deny Plaintiff’s motion for default judgment. Additionally, the
Court notes that Plaintiff did not submit evidence to establish
his right to relief on his claim against the United States, which
is also a prerequisite to default judgment.
Motion for Preliminary Injunctive Relief
Plaintiff’s complaint contains one claim under the Federal
Tort Claims Act for an alleged incident of assault on Plaintiff by
a staff member, on December 16, 2018, at FCI Fort Dix. (Compl.,
Dkt. No. 1 at 3.) For relief, Plaintiff requested money damages
and immediate release from prison. (Id. at 4.) Plaintiff filed a
motion for a preliminary injunction on January 21, 2021. (Mot. for
Prelim. Inj., Dkt. No. 34.) Plaintiff is presently incarcerated in
the Federal Correctional Institution in Oakdale, Louisiana (“FCIOakdale”). He seeks the following injunctive relief: (1) to provide
Plaintiff with ten regular envelopes per week or permit him to buy
one box of regular envelopes from the commissary per week because
envelopes because he filed a lawsuit in Shreveport; (2) order FCI
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Oakdale and the Bureau of Prisons Designation and Computation
Center to correct Plaintiff’s home confinement date; (3) release
Plaintiff because he requires outside medical care for a lump on
his nose, which he fears is cancerous; (4) release Plaintiff
because he has medical conditions that put him at risk of severe
illness if he is infected with COVID-19 in prison.
Standard of Law
Federal Rule of Civil Procedure 65(a)-(b)(1) provides:
(a) Preliminary Injunction.
preliminary injunction only on notice to
the adverse party.
(2) Consolidating the Hearing with the
Trial on the Merits. Before or after
beginning the hearing on a motion for a
preliminary injunction, the court may
advance the trial on the merits and
consolidate it with the hearing. Even when
consolidation is not ordered, evidence that
is received on the motion and that would be
admissible at trial becomes part of the
trial record and need not be repeated at
trial. But the court must preserve any
party's right to a jury trial.
(b) Temporary Restraining Order.
(1) Issuing Without Notice. The court may
issue a temporary restraining order without
written or oral notice to the adverse party
or its attorney only if:
(A) specific facts in an affidavit or a
verified complaint clearly show that
immediate and irreparable injury, loss,
or damage will result to the movant
before the adverse party can be heard in
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(B) the movant's attorney certifies in
writing any efforts made to give notice
and the reasons why it should not be
temporary restraining order or a preliminary injunction.
Opticians Ass’n of America v. Independent Opticians of America,
920 F.2d 187, 191-92 (3d Cir. 1990) (preliminary injunction);
DePinto v. Bayonne Bd. of Educ., 514 F.Supp.2d 633, 636 (D.N.J.
Opticians Ass’n of America, 920 F.2d at 192.
“ the likelihood that the applicant will
prevail on the merits at final hearing; 
the extent to which the plaintiffs are being
irreparably harmed by the conduct complained
of;  the extent to which the defendants
preliminary injunction is issued; and  the
public interest.” Bill Blass, Ltd. v. Saz
Corp., 751 F.2d 152, 154 (3d Cir. 1984).
“The purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits
can be held.”
University of Texas v. Camenisch, 451 U.S. 390, 395
remedy, which should be granted only in limited circumstances.’”
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Ferring Pharmaceuticals, Inc. v. Watson Pharmaceuticals, Inc., 765
F.3d 205, 210 (3d Cir. 2014)(quoting Novartis Consumer Health,
Inc. v. Johnson & Johnson–Merck Consumer Pharm. Co., 290 F.3d 578,
586 (3d Cir. 2002) (quotation marks omitted)). The movant bears
the burden of proof. Id.
The injunctive relief sought by Plaintiff has nothing to do
with the tort claim against the United States for the alleged
assault by a corrections officer at FCI Fort Dix. Plaintiff is no
longer incarcerated at FCI Fort Dix. Preliminary injunctive relief
is not a tool for prisoners to use to regulate “in every way, every
day, the terms and conditions of plaintiff's confinement simply
because they are ‘in court’ and regardless of the relation of the
activity desired to be stopped with the claim in the complaint.”
Muhammad v. Director of Corrections, No. CIV S-07-0375 GEB GGH P,
2009 WL 161075, at *1 (E.D. Ca. Jan. 22, 2009). Plaintiff cannot
establish the likelihood of success on the merits of his claims by
Plaintiff’s motion for a preliminary injunction.
The Court notes that Plaintiff could potentially bring a
habeas claim under 28 U.S.C. § 2241 in his district of confinement
date. Additionally, if he has not already done so, Plaintiff
has an option to seek early release from his sentencing
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court based on the
Oakdale, pursuant to
risk posed to him by COVID-19
18 U.S.C. § 3582(c)(1)(A)(i).
For the reasons discussed above, the Court denies Plaintiff’s
An appropriate order follows.
Dated: February 17, 2021
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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