DINOIA v. CUMBO et al
Filing
15
OPINION. Signed by Judge William J. Martini on 10/25/12. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:12-cv-03175 (WJM)
JOHN P. DINOIA,
Plaintiff,
OPINION
v.
TARA J. CUMBO, et al.,
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
Pro se Plaintiff John DiNoia brings this Section 1983 action against nine
Defendants, including eight New Jersey state troopers and the New Jersey State Police
Department. This matter comes before the Court on Plaintiff’s “motion to extend time
under F.R.CIV.P. 4(m), contingent upon a declaratory ruling as to service of the original
complaint.” ECF No. 13. The motion is unopposed. There was no oral argument. Fed.
R. Civ. P. 78(b). For the reasons set forth below, Plaintiff’s motion is DENIED.
I.
BACKGROUND
On June 4, 2012, Plaintiff filed a Complaint in forma pauperis pursuant to 28
U.S.C. §1915. ECF Nos. 1-3. The Complaint alleged that Plaintiff was arrested without
probable cause and cited for disorderly conduct, in violation of his constitutional rights.
Id. On June 7, 2012, Summons were issued as to all Defendants. ECF No. 4. Because
Plaintiff filed his Complaint in forma pauperis, the U.S. Marshals served Defendants
with the Complaint on July 20, 2012. ECF No. 7; see also Fed. R. Civ. P. 4(c)(3) (“At
the plaintiff’s request, the court may order that service be made by a United States
marshal . . . . The court must so order if the plaintiff is authorized to proceed in forma
pauperis under 28 U.S.C. §1915”).
On August 7, 2012, Plaintiff filed an Amended Complaint, adding one additional
Defendant: William Haggerty. ECF No. 8. In a letter to the Court filed on the same day,
Plaintiff questioned the effectiveness of the U.S. Mashals’ service of his original
Complaint. ECF No. 9. Plaintiff requested that the Summons on the Amended
Complaint be sent to him directly so that he could serve Defendants with the Amended
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Complaint himself. Id. On August 9, 2012, consistent with Plaintiff’s request, Summons
on the Amended Complaint were mailed to Plaintiff. ECF No. 10.
On August 17, 2012, Plaintiff sent a letter to the Clerk of the Court, stating:
I submitted a form of Summons on the original complaint in this
matter so that you can sign and seal it, and issue it to me. You
chose not to do so, even though FRCP 4(b) requires that you do
[sic], and even though I was specifically asking you to do so.
In a July 27th letter, I again reminded you of FRCP 4(b) and your
responsibility to provide me with the signed and sealed Summons.
You again chose not to do so, even though the letter apprised you
that the Marshal still hadn’t made service in this matter. The letter
also asked you to please explain ‘why you initially chose to issue
the summons only to the Marshal, and to withhold it from me.’. . .
The foregoing pattern of neglect among you and the Marshal’s
Service tends to evidence an intent and collaboration among you
and the Marshal’s Service to deprive me of justice. For that reason,
it seems especially fitting that you respond to these matters with
care and prudence.
ECF No. 11.1 On September 18, 2012, Plaintiff filed a waiver of service of summons that
was signed on behalf of all Defendants, except the New Jersey State Police Department
and William Haggerty. ECF No. 12.
II.
DISCUSSION
Plaintiff now moves “to extend time under F.R.CIV.P. 4(m), contingent upon a
declaratory ruling as to service of the original complaint.” ECF No. 13. Plaintiff’s
submission is difficult to follow. Although the title of Plaintiff’s motion suggests that
Plaintiff is seeking a declaratory judgment, the content of Plaintiff’s motion appears to be
a string of demands that the Court and various Court personnel provide Plaintiff with
legal advice regarding service of his original complaint. Specifically, Plaintiff reiterates
his concern that “service [of the original Complaint] made by the Marshal appears to
have been ineffective.” DiNoia Cert. at 3, ECF No. 13-1. Plaintiff notes that “the
Marshals Service did not reply” to his August 17th letter, and that he “re-requested the
Marshal to serve the original complaint.” Id. at 4. And Plaintiff states, “I herewith seek
1
Federal Rule of Civil Procedure 4(b) provides that, in a normal case, the clerk will issue
summons to the plaintiff for service on the defendant. However, in cases where the plaintiff
proceeds in forma pauperis under 28 U.S.C. § 1915, the court must order that service be made by
a U.S. Marshal instead. Fed. R. Civ. P. 4(c)(3).
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clarification from the court as to which time period governs the deadline for serving the
original complaint, and whether in fact, the filing of an amended complaint obviates
service of the original complaint.” Id. at 3.
To the extent that Plaintiff is demanding that the U.S. Marhsals re-serve his
original Complaint on Defendants, he is not entitled to that relief for two reasons. First,
the U.S. Marshals already served Defendants with Plaintiff’s original Complaint on July
20, 2012. ECF No. 7. Second, Plaintiff filed an Amended Complaint, so his original
Complaint is no longer operative for purposes of the case. Snyder v. Pascack Valley
Hosp., 303 F.3d 271, 276 (3d Cir. 2002) (“An amended complaint supercedes the original
version in providing the blueprint for the future course of a lawsuit.”). Because his
original Complaint is now irrelevant, Plaintiff is not entitled to have the U.S. Marshals reserve that document on any of the parties.
To the extent that Plaintiff is demanding that the Court provide him with legal
advice regarding the timing for service of process, he is not entitled to relief. It is wellsettled that a Court cannot give legal advice to a pro se litigant: “Courts owe no duty to
help pro se litigants make their case. Instead, a court must remain impartial and treat
both sides of a controversy the same. Were a judge to help one side of a controversy, he
would no longer be a judge but would become an adversary to the other side. Likewise,
it is improper for a judge to provide legal advice to one party in a civil controversy.”
United States v. Althoff, 16 F.3d 417, *2 (10th Cir. 1993); see also Rothman v. United
States, 508 F.2d 648, 653 n. 8 (3d Cir.1975) (it is not proper for a member of the federal
judiciary to offer legal advice); Houston v. Trella, No. 04-1393, 2006 WL 2772748
(D.N.J. Sept. 25, 2006) (“[I]t is not the role of the federal judiciary to provide legal
advice to any of its litigants, including those [litigants] who may be proceeding pro se”).
Accordingly, the Court is barred from granting Plaintiff the relief that he seeks.2
III.
CONCLUSION
For the reasons stated above, Plaintiff’s motion is DENIED. An appropriate order
follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: October 25, 2012
2
The Court notes that the instant motion is one of many strongly-worded submissions that
Plaintiff has made, inappropriately demanding legal advice from the Court. See ECF Nos. 5, 6,
9, and 11.
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