KITCHEN v. ESSEX COUNTY CORRECTIONAL FACILITY et al

Filing 31

MEMORANDUM OPINION AND ORDER denying pltf's request seeking the Attorney General to conduct depositions on his behalf; pltf. may file a second amended complt., etc.. Signed by Judge Jose L. Linares on 5/15/2013. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
ESSEX COUNTY CORRECTIONAL
:
FACILITY et al.,
:
:
Defendants.
:
_______________________________:
ARTHUR KITCHEN,

Civil Action No.
12-2199 (JLL)
MEMORANDUM OPINION
AND ORDER

This matter comes before the Court upon Plaintiff’s letter
[Docket Entry No. 27], and a letter from the Attorney General for
the State of New Jersey [Docket Entry No. 28], and it appearing
that:
1.

On April 12, 2012, Plaintiff submitted his original
complaint asserting that he had been assaulted by
unidentified correctional officers.

2.

[Docket Entry No. 1.]

The Court directed the Clerk to execute service upon the
Attorney General, who was designated to act solely as a
constructive agent for service; the Court also directed
Plaintiff to file his amended complaint (identifying
Defendants) once the relevant records were provided to him
by the Attorney General.1
1

[Docket Entry No. 2].

In conjunction with so ordering, the Court screened
Plaintiff’s complaint and explained to him: (1) the pleading
standard; (2) the fact that a correctional facility or a
department of corrections were not cognizable “persons” for the
purposes of a Section 1983 suit; and (3) the substantive standard

3.

On November 18, 2012, the Attorney General filed a letter
informing the Court that Plaintiff had been served with the
relevant records.

[Docket Entry No. 17.]

The Court,

therefore, directed Plaintiff to file his amended pleading,
and later allowed him additional time to replead.
Entries Nos. 18 and 21.]
his amended complaint.
4.

[Docket

In response, Plaintiff submitted
[Docket Entry No. 23.]

The Court screened the amended complaint (which named, as
Defendants in this matter, the State of New Jersey, the
Department of Corrections, the Essex County Correctional
Facility and five correctional officers, i.e., Officers
Melitta, Williams, Lynn, Caggiano and Coleman) and
determined that the amended complaint was insufficient under
the pleading standard that had already been detailed to
Plaintiff by the Court in its screening of Plaintiff’s
original complaint.

[Docket Entry No. 25.]

Consequently,

the Court dismissed Plaintiff’s challenges against all
juridical entities with prejudice.

The Court also explained

to Plaintiff that his claims could not be based on the
theory of respondeat superior or on the fact that someone
was present at a certain location.

See id.

Therefore,

Plaintiff was directed to file his second amended complaint

applicable to the Eighth Amendment claims. [Docket Entry No. 2.]
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asserting facts showing each defendant’s personal
involvement in the alleged wrongs.2
5.

See id. at 3-5.

In response, Plaintiff filed a letter requesting that the
Court direct the Attorney General to conduct “interviews” of
the officers whom Plaintiff deems as potential witnesses in
order to provide Plaintiff with those “interviews”

and

allow him an opportunity to assert wrongful actions on the
basis of the information contained in those “interviews.”3
[Docket Entry No. 27.]

The Attorney General filed a letter

objecting to Plaintiff’s request for such “interviews.”
[Docket Entry No. 28.]
6.

Plaintiff’s application is without merit.

Here, the Court,

being mindful of the guidance provided by the Court of
Appeals in Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir.
2004), directed service on the Attorney General, who was
designated to act solely as a constructive agent for
service, in order to allow Plaintiff an opportunity to

2

Plaintiff was allowed to serve upon the Attorney General a
“well-thought-through questionnaire detailing his recollections
about his alleged assailants,” i.e., describing the appearances
and/or other unique features, “in order to allow the Attorney
General a meaningful and viable opportunity to search the
records” and provide Plaintiff with the actual names of the
officers Plaintiff described. Docket Entry No. 25, at 5.
3

In other words, Plaintiff requested that the Court direct
the Attorney General to conduct depositions of the persons whom
Plaintiff deemed to be potential witnesses in order to provide
Plaintiff with the statements allowing Plaintiff to plead his
claims.
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determine the names – rather than the identities – of his
alleged assailants and effectuate service on those properly
named individuals.

See Haines v. Does, 07-5387, 2008 U.S.

Dist. LEXIS 30652, at *23 (D.N.J. Apr. 11, 2008) (“The
service on Defendants John Does will not be ordered because,
as a practical matter, it is in most instances impossible
for the United States 24 Marshal to serve a summons and
complaint on . . . unidentified defendants”) (quoting
Stackhouse v. Maricopa County, No. 05-0028, 2006 U.S. Dist.
LEXIS 50132, at *6 (D. Ariz. July 19, 2006), original
brackets omitted).
7.

At no point did this Court appoint the Attorney General to
act as Plaintiff’s counsel for the purposes of gathering
evidence to plead Plaintiff’s claims or to determine the
involvement of certain individuals in the alleged wrongs.
Indeed, as the Supreme Court clarified in its pivotal postAlston decision, Ashcroft v. Iqbal, 556 U.S. 662 (2009),
“the question [of sufficiency of] pleadings does not turn
[on] the discovery process.

. . .

[The plaintiff] is not

entitled to discovery . . . [since] Rule 8 does not [allow]
‘general allegation’” supported barely by hope of developing
actual facts through discovery.
omitted).

Id. at 684-87 (citations

Moreover, directing the Attorney General to

gather evidence in support of Plaintiff’s potential claims

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would necessarily expose the Attorney General to conflicts
of interest since, in the event Plaintiff’s challenges
survive sua sponte screening, the Attorney General is likely
to act as counsel for the state prison officers whom
Plaintiff is seeking to implicate in the alleged wrongs.
See N.J. Ct. Rules, RPC 1.7(a).

Finally, the Court itself

is obligated to limit the amount of guidance or assistance
it provides to Plaintiff in connection with pleading his
claims.

See Pliler v. Ford, 542 U.S. 225, 231-32 (2004)

(“District judges have no obligation to act as counsel or
paralegal to pro se litigants”); see also Reeves v. Office
of the Pub. Defender, No. 11-1741, 2012 U.S. Dist. LEXIS
23289, at *5 (D.N.J. Feb. 23, 2012) (“the Court’s legal
assistance to Plaintiff would render the Court biased”)
(citing, inter alia, 28 U.S.C. § 455(a), Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 860(1988), and In
re Kensington Intern. Ltd., 368 F.3d 289, 301 (3d Cir.
2004)).
8.

Therefore, Plaintiff’s application seeking to direct the
Attorney General to conduct depositions on Plaintiff’s
behalf will be denied.

However, out of abundance of

caution, Plaintiff will be allowed one final opportunity to
plead his claims in accordance with the terms of the Court’s
prior order docketed as Docket Entry No. 25.

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IT IS, therefore, on this 15th

day of May, 2013,

ORDERED that Plaintiff’s application, Docket Entry No. 27,
is denied; and it is further
ORDERED that, within thirty days from the date of entry of
this Memorandum Opinion and Order, Plaintiff may file his second
amended complaint, naming his assailants and detailing their
personal involvement in the alleged wrongs; and it is further
ORDERED that, in the event Plaintiff fails to file his
second amended complaint within the period allotted herein, the
Court will direct the Clerk to administratively terminate this
matter for failure to prosecute; and it is further
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon the Attorney General by means of electronic
delivery; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Plaintiff by certified mail, return receipt
requested.

S/ Jose L. Linares
JOSE L. LINARES
United States District Judge

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