GRAY v. POWELL
Filing
6
MEMORANDUM, ORDER Directing Clerk to reopen case; Denying Plaintiff's request for appointment of counsel;Directing Clerk to administratively terminate this action; If Plaintiff wishes to reopen this action, he shall so notify the Court in writing within 30 days of entry of this Order, etc. Signed by Judge Renee Marie Bumb on 2/17/2021. (rss, n.m. and ifp sent)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
HERBERT GRAY,
Plaintiff
v.
JOHN POWELL, ADMINISTRATOR
SOUTH WOODS STATE PRISON
et al.,
Defendants
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CIV. NO. 21-970 (RMB-KMW)
MEMORANDUM AND ORDER
This matter comes before the Court upon Plaintiff’s letter
request for leave to file an amended complaint and for appointment
of pro bono counsel. (Letter Request, Dkt. No. 5.) Plaintiff,
acting pro se, filed a prisoner civil rights complaint on January
21, 2021, which the Court dismissed without prejudice for failure
to state a claim. (Compl., Dkt. No. 1.) The Court granted leave
for Plaintiff to file an amended complaint within thirty days.
(Order,
Dkt.
No.
4.)
The
30-day
period
has
not
expired;
nonetheless, the Court will grant Plaintiff an extension of time
to file an amended complaint.
Plaintiff seeks appointment of counsel because he is legally
blind and has to rely on other inmates to complete his paperwork.
He alleges that he fears staff in the medical department are trying
to kill him, and he is in excruciating pain because they will not
assist him. As with his initial complaint, Plaintiff has not
Case 1:21-cv-00970-RMB-KMW Document 6 Filed 02/17/21 Page 2 of 4 PageID: 42
described his medical condition or the treatment that he was
denied.
Prior to appointing pro bono counsel to a financially eligible
person under 28 U.S.C. § 1915(e)(1), a court must determine whether
the Plaintiff’s claim(s) has arguable merit in fact and law. Tabron
v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). The Court dismissed
Plaintiff’s complaint because he failed to adequately describe the
medical treatment that he was denied, who denied the treatment,
when, and for what reason. Without more information, the Court
cannot determine whether Plaintiff has a potentially meritorious
Eighth Amendment claim for deliberate indifference to a serious
medical
need,
which
requires
more
than
a
showing
of
medical
malpractice. See Estelle v. Gamble, 429 U.S. 97, 106-07 (1976)
(describing
elements
of
an
Eighth
Amendment
claim
based
on
inadequate medical care). If Plaintiff wishes to bring a claim for
medical malpractice, rather than an Eighth Amendment claim under
42 U.S.C. § 1983, jurisdiction is appropriate in state court under
the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq.
IT IS therefore on this 17th day of February 2021,
ORDERED that the Clerk shall reopen this matter; and it is
further
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ORDERED that Plaintiff’s request for appointment of counsel
is DENIED without prejudice, pursuant to 28 U.S.C. § 1915(e)(1);
and it is further
ORDERED that the Clerk of the Court shall administratively
terminate
this
action;
administrative
termination
is
not
a
“dismissal” for purposes of the statute of limitations, and if the
case is reopened, it is not subject to the statute of limitations
time
bar
if
it
was
originally
filed
timely,
see
Jenkins
v.
Superintendent of Laurel Highlands, 705 F.3d 80, 84 n.2 (2013)
(describing prisoner mailbox rule generally); Dasilva v. Sheriff's
Dept., 413 F. App’x 498, 502 (3rd Cir. 2011) (“[The] statute of
limitations is met when a complaint is submitted to the clerk
before the statute runs …”); and it is further
ORDERED that if Plaintiff wishes to reopen this action, he
shall so notify the Court in writing within 30 days of entry of
this Order and submit either the $402 filing and administrative
fee
or
a
properly
completed
application
to
proceed
in
forma
pauperis under 28 U.S.C. § 1915 to the Clerk of Court, Mitchell H.
Cohen Building & U.S. Courthouse, 4th and Cooper Sts., Camden, New
Jersey, 08101; upon receipt of this writing from Plaintiff, the
Court will direct the Clerk to reopen this matter; Plaintiff may
file an amended complaint within 30 days of the date of entry of
this Order; and it is further
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ORDERED that the Clerk of the Court shall serve a copy of
this Order, together with a blank form “Affidavit of Poverty and
Account Certification (CIVIL RIGHTS)” and a blank Prisoner Civil
Rights Complaint form upon Plaintiff by regular U.S. mail.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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