LEWIS v. MILLS et al

Filing 96

MEMORANDUM ORDER that within 45 days of the date of this Order, Plaintiff may file a supplemental brief addressing the issues identified herein; should Plaintiff fail to file a supplemental brief, the Court will adjudicate the Motion with the briefin g already submitted; within 30 days after Plaintiff files his supplemental brief, the Medical Defendants may submit a response; the Clerk of the Court shall ADMINISTRATIVELY TERMINATE the Medical Defendants' Motion for Summary Judgment 70 ; upon completion of the supplemental briefing, the Court will re-instate the Motion. Signed by Judge Brian R. Martinotti on 7/22/2019. (jem)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

TIMOTHY M. LEWIS,
Plaintiff,
v.
OFFICER T. MILLS, et al.,
Defendants.

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Case No. 3:17-cv-12798 (BRM)

MEMORANDUM ORDER

THIS MATTER is before the Court on Defendants Gideon Thuo, CFG Health System
LLC and Rommel Montilus’s Motion for Summary Judgment. (ECF No. 70.)
IT APPEARING THAT:
1. On November 13, 2017, Plaintiff filed the initial Complaint in this matter. (Compl. (ECF
No. 1).)
2. After reviewing the Complaint, the Court allowed Plaintiff’s excessive force and failure
to protect claims against Defendants Mills, Tapia, Banz, Rosa, Locorriere, and Ortiz to proceed.
(ECF No. 5.)
3. On August 28, 2018, Plaintiff filed a Motion for Leave to File an Amended Complaint
to add Defendants Gideon Thuo and CFG Health System LLC as parties. (ECF No. 38.)
4. On September 18, 2018, the Honorable Lois H. Goodman, U.S.M.J. granted Plaintiff’s
motion (ECF No. 39), and Plaintiff filed an amended complaint naming Gideon Thuo, CFG Health
System LLC and Rommel Montilus (“Medical Defendants”) as defendants (ECF No. 40).
5. The Medical Defendants filed an answer (ECF No. 64), and on November 29, 2018, they
filed the instant Motion for Summary Judgment (ECF No. 70).

6. In their Motion, the Medical Defendants make only one argument: Plaintiff’s claims
against them are barred by the statute of limitations. More specifically, the Medical Defendants
argue the original Complaint contained only allegations against Defendants Mills, Tapia, Banz,
Rosa, Locorriere, and Ortiz stemming from an incident of excessive force on December 24, 2015
at the Middlesex County Adult Correctional Facility. (Defs. Br. (ECF No. 70-11) at 1.) According
to them, the initial Complaint does not specifically allege medical malpractice and/or denial of
medical care for a serious medical need; it does not name any of the Medical Defendants; and does
not name any fictitious parties. (Id.) The Medical Defendants were not named until the Amended
Complaint in September 2018. (Id.) Because the allegations against them arise out of the incident
on December 24, 2015, the Medical Defendants argue the claims against them are barred by the
two-year statute of limitations applicable to § 1983 claims. (Id. at 5-10.)
7. In opposition, Plaintiff argues the initial Complaint contained numerous fictitious parties
in addition to the excessive force defendants specifically named. (Pl.’s Opp. Br. (ECF No. 77-1)
at 22.) He contends that references to “medical unit” refers to CFG Health Systems, LLC and
“doctors and nurses” refers to Defendants Thuo and Montillus. (Id.) He further argues the original
Complaint specifically contains claims for medical malpractice and denial of medical care for a
serious medical need. (Id.) Plaintiff cites generally to his initial Complaint in support of these
arguments, but he does not point to any particular sections.
8. In light of his pro se status, and because it is relevant to the issue before the Court as to
whether the claims against the Medical Defendants are barred by the statute of limitations, the
Court will permit Plaintiff to supplement his briefing to specifically identify where, in his initial
complaint, he raises medical malpractice and/or denial of medical care claims. He should also
specifically identify where he raises claims against fictitious parties in his initial complaint. In his

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supplemental brief, he should identify these sections as precisely as possible, including, at a
minimum, the page number of the initial complaint where the claims and parties can be found. The
Medical Defendants may file a response to Plaintiff’s supplemental brief.
For the reasons set forth above and for good cause appearing,
IT IS on this 22nd day of July 2019,
ORDERED that within 45 days of the date of this Order, Plaintiff may file a supplemental
brief addressing the issues identified herein; should Plaintiff fail to file a supplemental brief, the
Court will adjudicate the Motion with the briefing already submitted; and it is further
ORDERED that within 30 days after Plaintiff files his supplemental brief, the Medical
Defendants may submit a response; and it is further
ORDERED that the Clerk of the Court shall ADMINISTRATIVELY TERMINATE the
Medical Defendants’ Motion for Summary Judgment (ECF No. 70); upon completion of the
supplemental briefing, the Court will re-instate the Motion; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiff via
regular mail.

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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