BRAGG v. PATTERSON et al

Filing 18

OPINION filed. Signed by Judge Anne E. Thompson on 11/18/2015. (kas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BRIAN KEITH BRAGG,
Plaintiff,

Civil Action
No. 15-6292 (AET-TJB)

v.
RAQUEL PATTERSON, et al.,

OPINION

Defendants.

RECEIVED
APPEARANCES:

NOV 18 2015
Brian Keith Bragg, Plaintiff Pro Se
#533330
Mercer County Correctional Center
PO Box 8068
Trenton, New Jersey 08650

AT8:30
WILLIAM T. WALSH
CLERK

M

THOMPSON, District Judge:
I .

INTRODUCTION
Before the Court is Plaintiff Brian Keith Bragg's

("Plaintiff"), submission of a civil rights complaint pursuant
to 42 U.S.C. § 1983.

(Docket Entry 3). Plaintiff is a pretrial

detainee currently confined at Mercer County Correctional Center
("MCCC"), Trenton, New Jersey. By Order dated October 14, 2015,
this Court granted Plaintiff's application to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915(a).

(Docket Entry 13).

At this time, the Court must review the complaint pursuant
to 28 U.S.C. §§ 1915(e) (2) and 1915A to determine whether it
should be dismissed as frivolous or malicious, for failure to

state a claim upon which relief may be granted, or because it
seeks monetary relief from a defendant who is immune from such
relief. For the reasons set forth below, the Court concludes
that the complaint shall be dismissed in part and shall proceed
in part.
I . BACKGROUND

Plaintiff filed this complaint against several employees of
MCCC, including Counselor Raquel Patterson, Officer Brown,
Officer Crawford, Officer Christie, Sergeant Friel, and
Lieutenant John Doe, alleging violations of his First, Fifth,
Eighth, and Eleventh Amendment rights.

(Docket Entry 1 at 7-8).

The following factual allegations are taken from the complaint
and are accepted for purposes of this screening only. The Court
has made no findings as to the veracity of Plaintiff's
allegations.
Plaintiff alleges that on August 7, 2015, he signed himself
into protective custody due to harassment and threats of
physical violence from MCCC employees.

(Docket Entry 1 at 8).

Plaintiff asserts these threats were done out of retaliation for
filing lawsuits against MCCC and its employees.

(Docket Entry 1

at 8). He specifically alleges Officers Brassel and Doe 1 "subject

1

This appears to be a separate person from Lieutenant Doe. The
Clerk of the Court shall be ordered to add Officer Doe to the
case caption as a Defendant.
2

Plaintiff to harassment and threats of violence and death on a
daily basis causing Plaintiff to suffer fear, anxiety, loss of
sleep, appetite and nightly nightmares." (Docket Entry 1 at 8).
On that same date, Plaintiff was involved in an altercation
with his cellmate.

(Docket Entry 1 at 8). Officers Brown,

Christie, Doe, and Crawford handcuffed Plaintiff and moved him
to another cell.

(Docket Entry 1 at 9). Upon entering the new

cell, the officers proceeded to strike Plaintiff on his chest
and body.

(Docket Entry 1 at 9). Plaintiff alleges that he fell

to the ground, and the officers continued to assault Plaintiff
by kicking him and stomping on him with their steel-toed boots.
(Docket Entry 1 at 9).
After the officers locked Plaintiff into the cell, Officer
Doe handed Plaintiff a blanket and sheets through the food port
and proceeded to slam the port door on Plaintiff's fingers.
(Docket Entry 1 at 9). According to the complaint, Sergeant
Friel and Lieutenant Doe witnessed the entire episode but did
not intervene.

(Docket Entry 1 at 9). Lieutenant Doe told

Plaintiff "'that will teach you for filing law suits against my
.,.
officers.'" (Docket Entry 1 at 9). Plaintiff asserts he was
denied any medical attention for his injuries.

(Docket Entry 1

at 10). He states Warden Charles Ellis knew about assaults
against him in the past, but failed to take any steps to protect

3

him against the officers' use of excessive force.

(Docket Entry

1 at 8).
Plaintiff filed this action on August 17, 2015.

(Docket

Entry 1). On September 3, 2015, he submitted an amended
complaint that incorporated his previous claims and added new
ones.

(Docket Entry 3). He added that on August 10, 2015,

Officer Doe returned Plaintiff's property, minus his prayer rug,
kufi, and Quran.

(Docket Entry 3

<JI<JI

5-6). Plaintiff complained

about his missing property to Sergeant Friel, who responded
"'stop filing grievances and law suits and your property won't
always come up missing.'" (Docket Entry 3

<JI<JI

7-8). Plaintiff

alleges Lieutenant Creighton, Sergeant Friel, Officer Crawford,
Officer Christie, Officer Brown, and Officers Does 1-6 threw out
his property in retaliation for filing lawsuits and grievances.
(Docket Entry 3

<JI

9).

Plaintiff further alleged in his amended complaint that
Counselor Patterson grabbed or touched his penis while he was in
her office on August 5, 2015.

(Docket Entry 3

<JI

16)

.2

He asserts

this contact violated his religious beliefs and New Jersey state
law, and resulted in loss of appetite and sleep, "crying spells,

2

The Court notes that the amended complaint appears to be
missing paragraphs 10-14. (Docket Entry 2 at 2-3). As the body
of the amended complaint proceeds from Ground Two to Ground
Three, the Court presumes this was a numbering error.

4

difficulty concentrating, nightmares, and depression." (Docket
Entry 3

~~

17-18).

Plaintiff requests this Court grant him relief in the form
of $1,000,000 in punitive damages against each defendant,
$1,000,000 in compensatory damages against each defendant,
attorneys fees and costs of suit, and an order that Warden Ellis
implement a plan to ensure Plaintiff's safety.

(Docket Entry 1

at 11-12). He also requests the appointment of pro bona counsel.
(Docket Entry 1 at 12).

II. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal

Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§

801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)

("PLRA"), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e) (2) (B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42

U.S.C~

§

1997e. The

PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§
1915(e) (2) (b) and 1915A because Plaintiff is a prisoner
5

proceeding in forma pauperis and is seeking relief from
governmental employees, and under

§

1997e because Pl~intiff is

bringing claims regarding the conditions of his confinement.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94

(2007)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
According to the Supreme Court's decision in Ashcroft v.
Iqbal, "a pleading that offers 'labels or conclusions' or 'a
formulaic recitation of the elements of a cause of action will
not do.'" 556 U.S. 662, 678

(2009)

(quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim,3 the complaint must
allege "sufficient factual matter" to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir.· 2009)

(citation omitted). "A claim has facial

plausibility when the plaintiff pleads factual content that

3 "The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b) (6) ." Schreane v. Seana, 506 F. App'x
120, 122 (3d Cir. 2012) (citing Allah v. Seiver ling, 229 F. 3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App'x 230,
232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c) (1));
Courteau v. United States, 287 F. App'x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
6

allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, "pro se litigants still must
allege sufficient facts in their complaints to support a claim."

Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted) .

B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person . who,
under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ....
§

1983. Thus, to state a claim for relief under § 1983, a

plaintiff must allege, first, the violation of a right secured
by the Constitution or laws of the United States and, second,
that the alleged deprivation was committed or caused by a person
acting under color of state law. See West v. Atkins, 487 U.S.
42, 48

(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.

2011).
7

III. ANALYSIS

Plaintiff asserts claims against Counselor Patterson,
Officer Brown, Officer Crawford, Officer Christie, Officers Doe
1-6, Sergeant Friel, and Lieutenant John Doe for violations of
his First, Fifth, Eighth, and Eleventh Amendment rights.

4

Specifically, he raises excessive force, failure to intervene,
retaliation, deprivation of property, and common law battery
claims, 5 and seeks injunctive relief from Warden Ellis.
A. Eleventh Amendment

To the extent Plaintiff seeks monetary damages from
Defendants in their official capacities, he is barred by the
Eleventh Amendment. Eleventh Amendment immunity "protects both
states and state agencies 'as long as the state is the real
party in interest.'" Woodyard v. Cnty. of Essex, 514 F. App'x
177, 182 (3d Cir. 2013)

(per curiam)

(quoting Fitchik v. N.J.

Transit Rail Ope.rations, 873 F.2d 655, 659 (3d Cir. 1989)

(en

bane)). A suit against a public official "'in his or her
official capacity is not a suit against the official but rather

4

The Court presumes Plaintiff intended to invoke the Fourteenth
Amendment in connection with his excessive force, failure to
intervene, retaliation, failure to protect, and deprivation of
property claims, and will conduct its analysis under that
amendment.
5 Plaintiff does not appear to be raising a denial of medical
care claim as the complaint is entirely silent as to the
elements of such a claim. See Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003).
8

is a suit against the official's office . . . . '" Printz v.

United States, 521 U.S. 898, 930-31 (1997)

(quoting Will v.

Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)). The Will
Court concluded that "neither a State nor its officials acting
in their official capacities are 'persons' under § 1983." 491
U.S. at 71; see also Smith v. New Jersey,

908 F. Supp. 2d 560,

563-64 (D.N.J. 2012).
Plaintiff's claims for monetary damages from Defendants in
their official capacities must therefore be dismissed with
prejudice.

B. Excessive Force
Plaintiff asserts Officer Brown, Officer Crawford, Officer
Christie, and Officer Doe violated his Eighth Amendment right to
be free from excessive force. As a pre-trial detainee at the
time of the incident, however, Plaintiff was protected by the
Due Process Clause of the Fourteenth Amendment. Bistrian v.

Levi, 696 F.3d 352, 367 {3d Cir. 2012). Analysis of whether a
detainee or un-sentenced prisoner has been deprived of liberty
without due process is governed by the standards set forth by
the Supreme Court in Bell v. Wolfish,

441 U.S. 520 (1979);

Fuentes v. Wagner, 206 F. 3d 335, 341--42 {3d Cir.) , cert. denied,
531 U.S. 821 (2000).
In Bell, the Supreme Court stated:

9

In evaluating the constitutionality of conditions or
restrictions of pretrial detention that implicate only
the protection against deprivation of liberty without
due process of law, we think that the proper inquiry is
whether those conditions amount to punishment of the
detainee. For under the Due Process Clause, a detainee
may not be punished prior to an adjudication of guilt in
accordance with due process of law.
441 U.S. at 535-36. The Court further explained that
"[r]estraints that are reasonably related to the institution's
interest in maintaining jail security do not, without more,
constitute unconstitutional punishment .

." Id. at 540.

Retribution and deterrence, however, are not legitimate nonpunitive governmental objectives, id. at 539 n.20, nor are
grossly exaggerated responses to genuine security
considerations, id. at 539 n.20, 561-62. Thus, in order for
Plaintiff to sufficiently allege a claim for excessive force
under the Fourteenth Amendment, he must allege that the force
used amounted to a wanton infliction of punishment as opposed to
restraint rationally related to exercising control. Fuentes, 206
F.3d at 342; see also Bell, 441 U.S. at 535.

Construing all inferences in Plaintiff's favor, as the
Court must do at this preliminary screening stage, this Court
preliminarily finds that Plaintiff has pled facts sufficient to
state a plausible claim for relief necessary to withstand
summary dismissal at this time. Therefore, the Court will allow
Plaintiff's Fourteenth Amendment excessive force claim to

10

proceed at this time against Officer Brown, Officer Crawford,
Officer Christie, and Officer Doe.6

C. Failure to Intervene
Plaintiff further alleges Sergeant Friel and Lieutenant Doe
failed to intervene during the other officers' assault upon him.
(Docket Entry 1 at 9).
"[A] corrections officer who fails to intervene when other
officers are beating an inmate may be liable on a failure-toprotect claim if the officer had 'a realistic and reasonable
opportunity to intervene' and 'simply refused to do so.'"

Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012)

(quoting

Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002)). Again
construing all inferences in Plaintiff's favor, Sergeant Friel
and Lieutenant Doe had the opportunity to intervene during the
other officers' assault on Plaintiff but did not do so.

(Docket

Entry 1 at 9). Therefore, the Court will allow Plaintiff's
Fourteenth Amendment failure to intervene claim to proceed at
this time against Sergeant Friel and Lieutenant Doe.

6 Plaintiff mentions Officer Brassel threatens him, but does not
allege any use of force by Officer Brassel. (Docket Entry 1 at
8). Generally, mere verbal harassment does not give rise to a
constitutional violation. See McKay v. U.S. Dep't of Justice,
406 F. App'x 570, 570 n.1 (3d Cir. 2010). Therefore, Plaintiff
has not sufficiently pled a violation of the Fourteenth
Amendment by Officer Brassel.
11

D. Retaliation
Plaintiff further appears to assert that he was assaulted
by Officer Brown, Officer Crawford, Officer Christie, and
Officer Doe, and that Sergeant Friel and Lieutenant Doe failed
to intervene in the assault, out of retaliation for the
grievances and lawsuits Plaintiff filed against MCCC employees.
(Docket Entry 1 at 9) . He also alleges his religious items were
disposed of due to his litigation activities in violation of the
Fourteenth Amendment.

(Docket Entry 3

~~

8-9).

"[R]etaliation for the exercise of constitutionally
protected rights . .

.

'is itself a violation of rights secured

by the Constitution actionable under section 1983.'" Miller v.
Mitchell,

598 F. 3d 139, 14 7 ( 3d Cir. 2010)

(quoting White v.

Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990)). Plaintiff must
allege "(l) he engaged in constitutionally protected activity;
(2) he suffered, at the hands of a state actor, adverse action
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) the

pr~tected

activity was a substantial or motivating factor in the state
actor's decision to take adverse action." Fantone v. Latini, 780
F.3d 184, 191 (3d Cir. 2015), as amended (Mar. 24, 2015).
"[T]he filing of grievances and lawsuits against prison
officials constitutes constitutionally protected activity."
Mearin v. Vidonish,

450 F. App'x 100, 102 (3d Cir. 2011)
12

(per

curiam). Again construing all inferences in Plaintiff's favor,
Plaintiff has sufficiently alleged Sergeant Friel's and
Lieutenant Doe's decision not to intervene in the other
officers' assault was motivated by Plaintiff's filing of
lawsuits and grievanGes against MCCC employees. He has not,
however, su£ficiently alleged that the officers' assault upon
him was retaliatory in nature. Whereas Plaintiff's allegations
against Sergeant Friel and Lieutenant Doe are supported by
Lieutenant Doe's comment,

(Docket Entry 1 at 9), Plaintiff's

allegations against the individual officers are not supported by
facts that would enable this Court to reasonably infer the
officers knew about the lawsuits prior to their assault on
Plaintiff and that those lawsuits were a motivating factor in
the assault. Plaintiff's retaliation claim may only proceed
against Sergeant Friel and Lieutenant Doe.
Plaintiff has also sufficiently alleged that Sergeant Friel
disposed of his religious property out of retaliation.
Plaintiff's complaint only references the Sergeant's comment,
"'stop filing grievances and law suits and your property won't
always come up missing[,]'" (Docket Entry 3

~~

7-8), therefore

his allegations against Lieutenant Creighton, Officer Crawford,
Officer Christie, Officer Brown, and Officers Does 1-6 have no
factual support in the complaint. As Plaintiff has failed to
allege sufficient facts to make it plausible that the ten other
13

defendants all disposed of his property,

Pla~ntiff

may proceed

in this retaliation claim only against Sergeant Friel.
E. Failure to Protect
According to Plaintiff, Warden Ellis knew Plaintiff had
been assaulted by corrections officers in the past but failed to
take any steps to protect him.

(Docket Entry 1 at 8). This claim

shall be dismissed without prejudice.
A "prison official may be held liable for 'deliberate
indifference' to a prisoner's Eighth Amendment right to
protection against violence while in custody if the official
'knows that [the] inmat[e] face[s] a substantial risk of serious
harm and disregards that risk by failing to take reasonable
measures to abate it.'" Ortiz v. Jordan, 562 U.S. 180, 190
(2011)

(alterations in original)

U.S. 825, 847

(quoting Farmer v. Brennan, 511

(1994)). "[A]n inmate must plead facts that show

(1) he was incarcerated under conditions posing a substantial
risk of serious harm,

(2) the official was deliberately

indifferent to that substantial risk to his health and safety,
and (3) the official's deliberate indifference caused him harm."

Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012)

(applying

Eighth Amendment deliberate indifference standard to pretrial
detainee's failure to protect claim).
Plaintiff has insufficiently pled that Warden Ellis was
deliberately indifferent to his safety. It is not sufficient
14

that a prison official should know of a risk, he "must actually
have known or been aware of the excessive risk to inmate
safety." Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.
2001). Plaintiff has provided nothing beyond his conclusory
statement that Warden Ellis "knew" about past assaults that
would indicate he had actual knowledge of the danger to
Plaintiff. Plaintiff does not indicate how Warden Ellis "knew"
about the assaults or what actions Warden Ellis took upon
learning of those assaults, if any. The Court therefore cannot
reasonably infer Warden Ellis acted with deliberate indifference
towards Plaintiff's safety. See W. Run Student Hous. Assocs.,

LLC v. Huntington Nat. Bank, 712 F.3d 165, 169-70 (3d Cir. 2013)
(noting the complaint "'must be enough to raise a right to
relief above the speculative level' and the complaining party
must offer 'more than labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action.'" (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). Plaintiff's
claim against Warden Ellis must be dismissed, however, Plaintiff
may move to amend this claim in accordance with Federal Rule of
Civil Procedure 15 and Local Civil Rule 7.1.

F. Deprivation of Property
To the extent Plaintiff attempts to raise a deprivation of
property claim for the disposal of his religious items, he has
failed to sufficiently allege one. The Supreme Court has held
15

that the "unauthorized intentional deprivation of property by a
state employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss is
available." Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also
Cruz v. SCI-SMR Dietary Servs., 566 F. App'x 158, 160 (3d Cir.
2014). Plaintiff has not alleged that a post-deprivation remedy
is unavailable to him, therefore this claim must be dismissed. 7
As Plaintiff may be able to allege facts that would set forth a
claim, he may move for leave to file a second amended complaint.
G. State Law Claims
Finally, Plaintiff appears to allege the common law tort of
battery against Counselor Patterson. District courts "shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution." 28 U.S.C.
§

1367(a). The state-law claims must share a "'common nucleus of

operative fact' with the claims that supported the district
court's original jurisdiction." De Asencio v. Tyson Foods, Inc.,
342 F.3d 301, 308 (3d Cir. 2003), as amended (Nov. 14, 2003)

7

It does not appear from the face of the complaint that
Plaintiff is alleging any of the Defendants infringed upon his
ability to exercise his religion. Should Plaintiff wish to raise
such a claim he must do so in a second amended complaint.
16

(quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966)). "[Section] 1367 does not permit courts to take
jurisdiction over tangentially related claims. The issue is
whether there is a 'common nucleus of operative fact' and
whether the claims are part of the 'same case or controversy
under Article III."' In re Prudential Ins. Co. Am. Sales

Practice Litig. Agent Actions, 148 F.3d 283, 303 (3d Cir. 1998).
In this matter, Plaintiff's battery claims against
Counselor Patterson do not arise from the same "common nucleus"
as his federal constitutional claims. The Court therefore
declines to exercise supplemental jurisdiction over the claim
against Counselor Patterson and shall dismiss her from the case.
The dismissal is without prejudice to Plaintiff's right to seek
relief against her in the state courts.a
H. Injunctive Relief
Plaintiff also seeks an order from this Court that would
require Warden Ellis to establish a policy to ensure Plaintiff's
safety. 9 Plaintiffs requesting prospective injunctive relief

8

The Court expresses no opinion as to the merits of Plaintiff's
state law claims or whether Plaintiff has complied with New
Jersey's filing requirements.
9 The Eleventh Amendment does not bar Plaintiff from seeking
injunctive relief from Wa~den Ellis in his official capacity.
See Ex Parte Young, 209 U.S. 123 (1908); see also Christ the

King Manor, Inc. v. Sec'y U.S. Dep 't of Heal th

&

Human Servs.,

730 F.3d 291, 318 (3d Cir. 2013), ("The theory behind Young is
that a state officer lacks the authority to enforce an
unconstitutional state enactment, and thus the officer is
17

"must allege a real and immediate threat of future injury." Doe
v.

Div.

(D.N.J.

of Youth & Family Servs.,

2001)

148 F. Supp. 2d 462, 478

(citing City of Los Angeles v. Lyons, 461 U.S. 95,

101 (1983)). "Allegations of exposure to illegal conduct in the
past alone, without a showing of continuing adverse effects, do
not demonstrate a case or controversy entitling a plaintiff to
prospective injunctive relief." Id. at 479 (internal citations
omitted) . A plaintiff must be able to show that a real and
imminent harm will occur; a mere possibility of future harm will
not suffice. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 30001

(3d Cir. 2012), cert. denied, 133 S. Ct. 2025 (2013).
Although the complaint sufficiently alleges Plaintiff was

injured in the past, it does not sufficiently allege that he is
at risk of future harm. Plaintiff's request for an injunction
must be denied at this time.
I. Appointment of Counsel
Plaintiff also requests this Court appoint him pro bona
representation. Based on the relevant factors, the Court will
deny the motion at this time. Plaintiff may reapply for counsel
in the future, however.

stripped of his official or representative character and becomes
subject to the consequences of his individual conduct."
(internal citation and quotation marks omitted)).
18

Plaintiff seeks the appointment of counsel under 28 0.S.C.
§

1915(e), which provides that "[t]he court may request an

attorney to represent any person unable to afford counsel." 28
U.S.C.

§

1915(e) (1). Appointment of counsel is a privilege, not

a statutory or constitutional right. Brightwell v. Lehman, 637
F.3d 187, 192 (3d Cir. 2011). Courts, in deciding whether to
appoint pro bona counsel, first must consider whether
plaintiff's claim "has some merit in fact and law." Tabron v.
Grace, 6 F. 3d 14 7, 155 ( 3d Cir. 1993)

(quotation omitted) . If

the court finds that it does, the court should consider the
·following factors:
(1) the plaintiff's ability to present his or her own
case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue
such investigation;
(4) the amount a case is likely to turn on credibility
determinations;
(5) whether the case will require the testimony of expert
witnesses;

(6) whether the plaintiff can attain and afford counsel
on his own behalf.

Parham v. Johnson, 126 F.3d 454, 457 (3d Cir.1997)

(citing

Tabron, 6 F.3d at 155-56, 157 n.5). This list of factors is not
exhaustive, nor is a single factor determinative. Id. at 458.
Instead, the factors serve as guideposts for district courts to
19

ensure valuable attorney time is not "wasted on frivolous
cases." Ibid. As noted in this Opinion, the Court has determined
that some of Plaintiff's claims shall proceed at this time. The
Court therefore presumes for purposes of appointing counsel only
that his claims have sufficient merit to continue the Tabron
analysis.
Having granted Plaintiff in forma pauperis status, the
Court finds Plaintiff is unable to afford his own counsel.
Plaintiff's indigency, however, is not sufficient to warrant
counsel in and of itself. Many pro se plaintiffs are indigent,
yet are denied pro bona counsel. The Court considers this factor
to be neutral. The remainder of the factors, however, weigh
against the appointment of counsel at this time. Plaintiff has
clearly articulated his claims against Defendants, indicating he
is able to pursue this matter on his own. The legal issues do
not appear to be so complex that the assistance of counsel is
required, nor does it appear that a significant factual
investigation will be necessary. The case will undoubtedly
require credibility determinations, but not to such a degree
that Plaintiff would require, assistance in cross-examining
Defendants or their witnesses. Finally, it does not appear from
the face of the complaint that expert testimony will be
required.

20

For all of these reasons, the Court will deny Plaintiff's
motion for the appointment of counsel without prejudice. The
Court will reassess the Tabron factors in the event Plaintiff
elects to reapply for counsel, and Plaintiff should address them
in any future motion for the appointment of counsel.
J. Leave to Amend

As Plaintiff may be able to allege facts that would address
the deficiencies of his claims as noted by the Court, Plaintiff
may move for leave to file a second amended complaint. Any
motion to amend the complaint must be accompanied by a proposed
second amended complaint and comply with Federal Rule of Civil
Procedure 15 and Local Civil Rule 7.1.
Plaintiff should note that when a second amended complaint
is filed, the original complaint no longer performs any function
in the case and cannot be utilized to cure defects in the
amended complaint, unless the relevant portion is specifically
incorporated in the new complaint. 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990)

(footnotes

omitted) . An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Id. To avoid confusion, the safer course is to file an
amended complaint that is complete in itself. Id. The second

21

amended complaint may not adopt or repeat claims that have been
dismissed with prejudice by the Court.

IV.

CONCLUSION
For the reasons stated above, Plaintiff's excessive force

complaint against Officer Brown, Officer Crawford, Officer
Christie, and Officer Doe shall proceed at this time. His
retaliation and failure to intervene claims against Sergeant
Friel and Lieutenant Doe shall also proceed.
cl~im

Plaintiff's failure to protect

against Warden Ellis

is dismissed without prejudice, as is his deprivation of
property claim and request for injunctive relief. The Court
declines to exercise supplemental jurisdiction over Plaintiff's
state law claims against Counselor Patterson, and shall dismiss
her from the case. Plaintiff's motion for the appointment of
counsel is denied without prejudice.
An appropriate order follows.

ANNE
U.S. District Judge

Dat'e \

22