WATKINS v. MERRIEL et al

Filing 28

OPINION filed. Signed by Judge Freda L. Wolfson on 9/27/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JESSE WATKINS,
Plaintiff,
v.
M. MERRIEL, et al.,
Defendants.

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Civil Action No. 12-4851 (FLW)
OPINION

APPEARANCES:
JESSE WATKINS, Plaintiff pro se
SBI # 25457B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
MARVIN L. FREEMAN, ESQ.
STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Counsel for Defendants
WOLFSON, District Judge
This matter comes before the Court on the motion of
Plaintiff Jesse Watkins for a preliminary injunction against
Defendant Correctional Officer (“C/O”) M. Merriel, enjoining
Defendant from harassing, threatening and retaliating against
Plaintiff.

(Docket No. 6.)

The Court also considers

Plaintiff’s appeal (Dkt. # 13) from the March 27, 2013 Decision

of the Honorable Tonianne J. Bongiovanni, U.S.M.J., denying
Plaintiff’s application for appointment of counsel in this
matter.

(Dkt. # 12.)

These motions are being considered on the

papers, pursuant to Federal Rule of Civil Procedure 78.

For the

reasons set forth below, the motion for preliminary injunctive
relief is denied without prejudice, and Plaintiff’s appeal from
denial of appointment of counsel is granted.
I.

BACKGROUND

On August 3, 2012, Plaintiff Jesse Watkins filed this civil
rights Complaint seeking relief pursuant to 42 U.S.C. § 1983.
Plaintiff alleges an Eighth Amendment violation, as well as
various state law tort claims, against several correctional
officers at the New Jersey State Prison (“NJSP”), where
Plaintiff is confined, namely, C/O M. Merriel, C/O L. Logan and
Sergeant Rokeach.

(Dkt. # 1, Complaint at Caption, ¶¶ 4, 5 and

6.)
Plaintiff is a wheelchair-bound inmate currently confined
at NJSP.

Plaintiff alleges that, on December 4, 2011, while he

was trying to attend a Protestant Church Service at NJSP,
Defendant C/O Merriel told Plaintiff and another wheelchairbound inmate to walk through the metal detector.

When Plaintiff

told Merriel that he could not walk and that he had a medical
pass, Merriel allegedly responded:
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“I don’t care about a

doctor’s note.

You can walk!”

Plaintiff then turned to

Defendant Logan, who was standing by the window, to read the
medical pass inside Plaintiff’s bible.

Nevertheless, both

Merriel and Logan gave Plaintiff a direct order to “Get up and
walk!”

(Id. at ¶ 7.)

Another correction officer, C/O Tubby, was working inside
the booth at the time.

Tubby knocked on the window to indicate

to Merriel and Logan to pat search Plaintiff.

However, the

officer’s attempt to assist Plaintiff allegedly was ignored by
Merriel and Logan.

Plaintiff tried to comply with Merriel and

Logan’s order to walk, but he collapsed to the floor in
excruciating pain.

Plaintiff alleges that he could not feel any

sensations in his legs, but he also felt a sharp pain in his
back.

Plaintiff asked for a medical code, but Sgt. Rokeach, who

had just arrived, said: “No, he wasn’t going to call a code, and
that it was yard time.”

Rokeach then instructed inmate

Livingston to pick up Plaintiff from the floor.

(Id. at ¶ 9.)

Plaintiff alleges that the attempt to move him caused him
further pain, at which point, Rokeach ordered other prisoners to
assist inmate Livingston, who was unable to pick up Plaintiff by
himself.

Plaintiff was lifted and placed in his wheelchair.

(Id. at ¶ 10.)

Plaintiff then asked Livingston to wheel him to

the medical clinic, to which Merriel yelled “No!”
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Livingston

was then instructed by Merriel to return Plaintiff to his
housing unit, which he did.

When Plaintiff arrived in his

housing unit, he immediately asked inmate Richard Thompson
(#568688), another porter on Unit 2C, to tell the Unit C/O Thorn
that Plaintiff needed an emergency pass to the medical clinic
because Plaintiff was in “great pain.”
Plaintiff to the clinic.

Thompson then wheeled

(Id. at ¶¶ 11, 12.)

Once in the clinic, Plaintiff was seen by Nurse Lance
Carver, who gave Plaintiff a shot of Tardal and told Plaintiff
to lie down and relax.

Plaintiff was then returned to his

housing unit by inmate Thompson.

(Id. at ¶¶ 13, 14.)

On December 6, 2011, Plaintiff wrote to various New Jersey
Department of Corrections (“NJDOC”) officials, namely
Commissioner Gary Lanigan, Assistant Commissioner of Operations,
Debbe Faunce of the Special Investigation Division (“SID”)
Central Office, New Jersey Attorney General Paula Dow, NJSP
Administrator Charles Warren, and the Principal Investigator of
the SID, asking that the video tapes of December 4, 2011 be
preserved as evidence.

(Id. at ¶¶ 17-22.)

On December 10, 2011, Plaintiff filed an inmate grievance
concerning the December 4, 2011 incident.

Plaintiff allegedly

received an unsatisfactory response to his grievance on January
7, 2012, and promptly filed an administrative appeal on January
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9, 2012.

Plaintiff’s appeal was returned to him on March 21,

2012, well past the 30-day time limit allotted to staff
response, because Plaintiff had inadvertently forgotten to sign
his appeal.

Plaintiff signed the appeal and promptly re-filed

it, but to date, has not received any response.

(Id. at ¶ 23.)

On February 26, 2012, Plaintiff filed a Tort Claim Notice
with the State of New Jersey Bureau of Risk Management, a copy
of which he attached to his Complaint at Exhibit Q.

On or about

May 17, 2012, Plaintiff received a denial letter from Terrence
Little, Claims Investigator.

Although Plaintiff refers to the

letter as Exhibit “R”, no such exhibit was attached to his
Complaint.

Plaintiff contends that he has exhausted his

administrative and tort claim remedies before proceeding with
this lawsuit.
Plaintiff’s Complaint asserts a cause of action under the
Eighth Amendment, alleging that defendants acted with deliberate
indifference in violation of Plaintiff’s right to be free from
cruel and unusual punishment.

(Id. at Count I.)

He also

asserts state law tort claims of intentional infliction of
emotional distress and willful misconduct in violation of
N.J.S.A. 2C:59-1.

(Id. at Counts II and IV.)

Plaintiff seeks

an unspecified amount in punitive damages (Count III), and

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compensatory damages of $150,000.00.

(Id. at Prayer for

Relief.)
On January 29, 2013, this Court issued an Order granting
Plaintiff’s application to proceed in forma pauperis, and
directing the Clerk of the Court to issue summonses for U.S.
Marshal’s service on the named Defendants.

(Dkt. # 3.)

On January 31, 2013, Plaintiff filed this motion for a
preliminary injunction, as well as an application for
appointment of pro bono counsel.
respectively.)

(Dkt. ## 6 and 7,

Magistrate Judge Tonianne J. Bongiovanni denied

without prejudice Plaintiff’s application for appointment of
counsel, based upon an evaluation of factors under Tabron v.
Grace, 6 F.3d 147 (3 Cir. 1993).

Specifically, Magistrate Judge

Bongiovanni found that Plaintiff had not supplied the Court with
any supporting medical documentation or doctor’s opinion to show
that Plaintiff suffers from ailments limiting his mobility,
which would preclude Plaintiff from proceeding pro se in this
case.

Magistrate Judge Bongiovanni also noted that no discovery

had been conducted, rendering the issue of credibility not ripe
at the time, and Plaintiff had not demonstrated a need for
expert testimony.

Magistrate Judge Bongiovanni further observed

that Plaintiff had not claimed a lack of resources, making

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Plaintiff’s status as a prisoner the single factor for
consideration of his request for pro bono counsel.

(Dkt. # 12.)

Plaintiff filed his appeal from this denial of appointment
of counsel on March 27, 2013.

(Dkt. # 13.)

Plaintiff argues

that the Magistrate Judge overlooked several factors, namely,
Plaintiff’s “complete ignorance of the law,” the “complexity of
[his] medical claims,” and the fact that Plaintiff’s indigent
status already was determined when this Court granted
Plaintiff’s application for in forma pauperis.

(Id. at ¶¶ 4, 5

and 6.)
In support of his motion for a preliminary injunction,
(Dkt. # 6), Plaintiff alleges that Defendant Merriel continues
to violate Plaintiff’s constitutional rights.

In particular,

Plaintiff alleges the following conduct by Merriel:
•

On February 5, 2012, Merriel “threatened and harassed”

Plaintiff when Plaintiff went to the clinic for his diabetic
shot.
•

(Dkt. # 6 at ¶ 5.)
On February 12, 2012, Merriel “threatened and harassed”

Plaintiff while Plaintiff was attending church service.

(Id. at

¶ 6.)
•

On April 8, 2012, Merriel denied Plaintiff access to a

religious service because Plaintiff was unable to walk through

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the metal detector, despite Plaintiff’s medical pass.

(Id. at ¶

8.)
•

On April 15, 2012, Merriel again denied Plaintiff’s

attendance at a religious service.

(Id. at ¶ 9.)

Plaintiff alleges that he filed grievances regarding these
actions by Merriel, which are still pending.

Plaintiff also

generally alleges that there have been other instances of
ongoing misconduct by Merriel.

(Id. at ¶ 10.)

On June 7, 2013, Defendants filed an Answer with
Affirmative Defenses.

(Dkt. # 18.)

A Scheduling Order was

entered on June 11, 2013, setting discovery to be completed by
September 10, 2013, issues to be raised by September 5, 2013,
dispositive motions to be filed by October 11, 2013 (made
returnable on November 4, 2013), and for pretrial memorandums to
be submitted by Plaintiff on November 26, 2013 and by Defendants
on December 3, 2013.

(Dkt. # 19.)

On September 3, 2013, Plaintiff wrote to the Court
regarding pending issues, namely, the motion for preliminary
injunction and the appeal from denial of pro bono counsel.
(Dkt. # 21.)

On September 4, 2013, Plaintiff filed a motion to

compel Defendants to produce certain evidence.

(Dkt. # 22.)

On

September 6, 2013, Plaintiff wrote to the Court asking that the
Case Management Order be modified.
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(Dkt. # 23.)

On September 10, 2013, Magistrate Judge Bongiovanni denied
Plaintiff’s motion to compel, extended the discovery deadline to
November 22, 2013, and set dispositive motions to be filed by
December 27, 2013, with a return date of January 20, 2014.
(Dkt. # 25.)
II.
A.

DISCUSSION

Motion for Preliminary Injunction
This Court has recently observed the “well-settled”

standard of review in this circuit for a party seeking a
preliminary injunction.

Starego v. New Jersey State

Interscholastic Athletic Ass’n, --- F. Supp2d ----, 2013 WL
4804821, * 3 (D.N.J. Sep. 9, 2013).

Namely, Plaintiff must

show: (1) a likelihood of success on the merits; (2) that he
will suffer irreparable harm if the injunction is denied; (3)
that granting preliminary relief will not result in even greater
harm to the non moving party; and (4) that the public interest
favors such relief.

Id. (citing Conestoga Wood Specialties

Corp. v. Sec’y of the U.S. Health and Serv., No. 13–1114, 2013
U.S.App. LEXIS 15238, at *11–12 (3d Cir. Jul. 26, 2013); Kos
Pharms. Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004).
The Third Circuit has further instructed, and freshly
reconfirmed, that a plaintiff seeking an injunction must meet
all four criteria, as “[a] plaintiffs failure to establish any
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element in its favor renders a preliminary injunction
inappropriate.”

NutraSweet Co. v. Vit–Mar Enters., Inc., 176

F.3d 151, 153 (3d Cir. 1999); see Conestoga, 2013 U.S.App. LEXIS
15238, at *11.
Taking these factors into consideration here, the Court
finds that Plaintiff has not demonstrated that he will suffer
irreparable harm in the event preliminary injunctive relief is
not granted.

To demonstrate irreparable harm, a plaintiff must

point to an imminent risk of irreparable injury that “cannot be
redressed by a legal or an equitable remedy following trial.”
Hynoski v. Columbia Cnty Redevelopment Auth., 485 F. App’x 559,
563 (3d Cir. 2012) (quoting Instant Air Freight Co. v. C.F. Air
Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989)).

See also

Chester ex rel. N.L.R.B. v. Grane Healthcare Co., 666 F.3d 87,
89 (3d Cir. 2011) (describing irreparable harm factor as
“imminent threat of irreparable harm”) (emphasis added).

It is

plain from the motion submitted here that the incidents of
alleged threats and harassment by Defendant Merriel, and the
alleged denial of religious exercise, do not demonstrate
imminence.

The threats and harassment he complains of occurred

more than four months before Plaintiff filed his initial

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Complaint,1 and almost ten months before Plaintiff filed his
motion for a preliminary injunction.

Thus, there are no

allegations of fact to show that there are ongoing, postcomplaint threats against Plaintiff.

Accordingly, Plaintiff has

not demonstrated he will suffer imminent irreparable harm if the
preliminary injunction remedy is not granted.
Moreover, it is questionable whether Plaintiff could
succeed on the merits of his claims of verbal harassment by
Defendant Merriel.

Generally, mere verbal harassment does not

give rise to a constitutional violation.

See Boomer v. Lewis,

--- F. App’x ----, 2013 WL 4505455, *4 (3d Cir. Aug. 26, 2013);
McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir. 2001)
(taunts and threats are not an Eighth Amendment violation);
Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987).
Therefore, where Plaintiff has failed to establish
irreparable harm and likelihood of success on the merits,
issuance of a preliminary injunction is inappropriate at this
time.

Plaintiff’s motion will be denied without prejudice

accordingly.

In his preliminary injunction motion, Plaintiff asserts that
Merriel threatened and harassed him from February through April
2012. His initial Complaint was filed in August 2012.
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B.

Appeal from Denial of Pro Bono Counsel
“Where an unrepresented [p]laintiff in a civil suit is

indigent, and where good cause exists for the appointment of pro
bono counsel under 28 U.S.C. § 1915(e)(1), the District Court
has the discretion and authority to appoint pro bono
counsel....”

Williams v. Hayman, 488 F. Supp.2d 446, 447

(D.N.J. 2007); see also Brandt v. Hogan, Civil No. 10-4944
(FLW), 2013 WL 1702181, *11 (D.N.J. Apr. 18, 2013).

The

District Court should exercise this discretion when the
interests of justice require the appointment of counsel to
assist Plaintiff in the prosecution of his or her case, which
may occur at any point during the proceeding.

See Tabron v.

Grace, 6 F.3d 147, 156 (3d Cir. 1993) (“[W]e emphasize that
appointment of counsel under § 1915(d) may be made at any point
in the litigation....”).
When examining an application for appointment of counsel, a
court must consider the following factors set forth by the Third
Circuit in Tabron v. Grace:
(1) the claim has some merit;
(2) the pro se party lacks the ability to present an
effective case without an attorney;
(3) the legal issues are complex or, the ultimate legal
issues are not complex, but the pro se party lacks the
familiarity with the rules of evidence and discovery needed
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to translate understanding of the law into presentation of
the proofs;
(4) factual investigation will be necessary and the party
is not adequately able to pursue said investigation;
(5) the case is likely to turn on credibility
determinations;
(6) the case will require expert testimony; and
(7) the party is unable to attain and afford counsel on
his/her own behalf.
6 F.3d at 156; Brandt, 2013 WL 1702181 at *12; Lamas v.
Gonzales, Civil No. 07–3351 (DMC), 2007 WL 4166009, *1 (D.N.J.
Nov.16, 2007) (citing Parham v. Johnson, 126 F.3d 454 (3d Cir.
1997)).

A pro se litigant need not meet each of the Tabron

factors for the Court to appoint counsel.
As noted above, Magistrate Judge Bongiovanni reasoned that
appointment of counsel was not indicated at that early juncture
because no discovery had yet been conducted, thus making any
issue of credibility determinations premature.

She also

commented that Plaintiff had not shown a need for expert
testimony, nor had Plaintiff provided any medical documentation
to show that he suffers from ailments or disabilities that would
limit his ability to prosecute his case.
Applying the Tabron factors to the present case, this Court
likewise finds that the legal issues are not complex, and
Plaintiff has demonstrated through his pleadings and
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applications before this Court that he has sufficient
familiarity with the rules of evidence and discovery procedure
necessary to prosecute his case.

However, several months have

now passed since Magistrate Judge Bongiovanni’s ruling, and this
case is approaching the close of discovery.

Moreover,

credibility issues are likely to become a critical factor in the
depositions of the parties.

Therefore, in light of the current

stage of the proceedings, the Court will depart from the
Magistrate Judge’s ruling.
The Court finds that Plaintiff has demonstrated several
Tabron factors to support appointment of counsel; namely, (a)
likely merit to his claims (Tabron factor # 1);(b) Plaintiff’s
indigency (Tabron factor # 7); and (c) that the case is apt to
turn on credibility determinations requiring effective
representation during depositions (Tabron factors ## 2, 5).
These factors weigh in Plaintiff’s favor for appointment of pro
bono counsel at this time.

Accordingly, Plaintiff’s appeal from

the Magistrate Judge’s decision regarding appointment of counsel
is granted, and the Court will grant Plaintiff’s request for
appointment of pro bon counsel.
III.

CONCLUSION

For the reasons set forth above, Plaintiff’s motion for a
preliminary injunction (Dkt. # 6) is denied without prejudice.
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However, Plaintiff’s appeal (Dkt. # 13) from the Magistrate
Judge’s March 12, 2013 decision regarding appointment of counsel
is granted, and Plaintiff’s request for appointment of pro bono
counsel is granted.

An appropriate order follows.

s/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated:

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