THOMAS v. POGORZELSKI et al

Filing 8

MEMORANDUM AND ORDER that Plaintiff's Fourth Amendment claim for excessive force and his Fourteenth Amendment claim for denial of medical care under § 1983 shall PROCEED against Defendants I.R. Pogorzelski and R. Diaz; Plaintiff's Four teenth Amendment claim for failure to intervene under § 1983 shall proceed against John Doe Officers 1-7; Plaintiff's official capacity claims for damages are dismissed WITH PREJUDICE as to all Defendants; the Clerk shall mail to Plaintiff a transmittal letter explaining the procedure for completing the United States Marshal ("Marshal") 285 Forms ("USM-285 Forms"); once the Marshal receives the USM-285 Form(s) from Plaintiff and the Marshal so alerts the Clerk, the Clerk shall issue summons in connection with each USM-285 Form that has been submitted by Plaintiff, and the Marshal shall serve summons, the Complaint and this Order to the address specified on each USM-285 Form, with all costs of service advanced by the United States. Signed by Judge Freda L. Wolfson on 6/29/2017.(Copies Sent) (seb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JEFFERY PERRY THOMAS,

Civil Action No. 16-8833(FLW)

Plaintiff,
v.

MEMORANDUM AND ORDER

I.R. POGORZELSKI, et al.,

Defendants.

1.

This Court previously granted Plaintiff’s application to proceed in forma pauperis. 1 (See

ECF Nos. 3-4.) Federal law requires this Court to screen Plaintiff’s Complaint for sua sponte
dismissal prior to service, and to dismiss any claim if that claim fails to state a claim upon which
relief may be granted under Fed. R. Civ. P. 12(b)(6) and/or to dismiss any defendant who is
immune from suit. See 28 U.S.C. § 1915(e)(2)(B).
2.

This Court has screened the Complaint in this action for dismissal and has determined

that the Complaint states a claim under 42 U.S.C. § 1983 2 against Defendant State Police
Officers I.R. Pogorzelski and R. Diaz for excessive force under the Fourth Amendment and

1

Plaintiff filed a second application to proceed in forma pauperis, which is not certified by the
appropriate prison official. (See ECF No. 7.) Because the Court has already granted his IFP
application, it need not rule on this new application.
2

The Court does not construe Plaintiff’s Complaint to allege any claims for relief arising under
state law, including state law tort claims or claims under the New Jersey Civil Rights Act
(“NJCRA”). To the extent Plaintiff wishes to bring such claims, he must file an Amended
Complaint.

1

denial of medical care under the Fourteenth Amendment based on Plaintiff’s allegations that the
officers brutally assaulted Plaintiff on May 14, 2015, and denied his requests for medical care
following the assault. (ECF No. 1, Compl. at §§ 4-12.) Plaintiff also states a § 1983 claim for
failure to intervene under the Fourteenth Amendment against John Doe Officers 1-7 who
allegedly stood by and watched the assault take place and did nothing to intervene. (Id. at § 3.)
Accordingly, dismissal of the entire Complaint is not warranted at this time, and the claims as
described in this Memorandum and Order shall proceed.
3.

The Court, however, will dismiss with prejudice the official capacity claims for damages

against all Defendants, as “neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
IT IS, therefore, on this 29th day of June, 2017,
ORDERED that Plaintiff’s Fourth Amendment claim for excessive force and his
Fourteenth Amendment claim for denial of medical care under § 1983 shall PROCEED against
Defendants I.R. Pogorzelski and R. Diaz; and it is further
ORDERED that Plaintiff’s Fourteenth Amendment claim for failure to intervene under §
1983 shall proceed against John Doe Officers 1-7; 3 and it is further
ORDERED that Plaintiff’s official capacity claims for damages are dismissed WITH
PREJUDICE as to all Defendants; and it is further
ORDERED that, the Clerk shall mail to Plaintiff a transmittal letter explaining the
procedure for completing the United States Marshal (“Marshal”) 285 Forms (“USM-285
Forms”); and it is further

3

Because Plaintiff has not identified the John Doe Defendants, the Court will not order service
on these Defendants at this time.
2

ORDERED that, once the Marshal receives the USM-285 Form(s) from Plaintiff and the
Marshal so alerts the Clerk, the Clerk shall issue summons in connection with each USM-285
Form that has been submitted by Plaintiff, and the Marshal shall serve summons, the Complaint
and this Order to the address specified on each USM-285 Form, with all costs of service
advanced by the United States 4; and it is further
ORDERED that Defendant(s) shall file and serve a responsive pleading within the time
specified by Federal Rule of Civil Procedure 12; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(e)(1) and § 4(a) of Appendix H of the
Local Civil Rules, the Clerk shall notify Plaintiff of the opportunity to apply in writing to the
assigned judge for the appointment of pro bono counsel; 5 and it is further
ORDERED that, if at any time prior to the filing of a notice of appearance by
Defendant(s), Plaintiff seeks the appointment of pro bono counsel or other relief, pursuant to
Fed. R. Civ. P. 5(a) and (d), Plaintiff shall (1) serve a copy of the application by regular mail
upon each party at his last known address and (2) file a Certificate of Service; 6 and it is further
ORDERED that the Clerk of the Court shall serve Plaintiff with copies of this
Memorandum and Order via regular mail.

/s/
Freda L. Wolfson
Freda L. Wolfson
United States District Judge
4

Alternatively, the U.S. Marshal may notify Defendant(s) that an action has been commenced
and request that the defendant(s) waive personal service of a summons in accordance with Fed.
R. Civ. P. 4(d).
5

It appears that Plaintiff has requested pro bono counsel in his Complaint; however, the proper
procedure is to file a motion for pro bono counsel, which Plaintiff is free to do.
6

After an attorney files a notice of appearance on behalf of a Defendant, the attorney will
automatically be electronically served all documents that are filed in the case.
3