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Carney v. Hargrave

December 22, 2006

HELEN RITA CARNEY, PRO SE 1762 CROWN POINT ROAD THOROFARE, NJ 08086 PLAINTIFF,
v.
JOHN HARGRAVE, DEFENDANT.



The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge

MEMORANDUM OPINION

Plaintiff Helen Carney seeks entry of default judgment against defendant John Hargrave, a municipal building inspector in Gloucester City, New Jersey. In her Complaint, filed April 24, 2003, Ms. Carney seeks money damages of $500,000 for violation of her constitutional right to bring grievances to the government under the First Amendment.

The Summons and Complaint were served upon defendant Hargrave on May 14, 2003, and Hargrave failed to answer or otherwise plead to the Complaint. Upon request of the plaintiff, the Clerk of Court entered default against Hargrave pursuant to Rule 55(a), Fed. R. Civ. P., on February 6, 2004.

Plaintiff discharged her attorney and proceeded pro se. She was not able to procure the affidavits necessary to establish her case for purposes of obtaining default judgment.*fn1 Her own efforts in this regard, though sincere, did not comply with the Federal Rules of Civil Procedure and the Federal Rules of Evidence, in various particulars that the Court pointed out to her in correspondence during the extended period of time in which this case was pending. Finally, the Court, upon ample notice to Ms. Carney in the Letter Order of November 6, 2006 [Docket Item 34], set the case down for a default judgment hearing where she would have the opportunity to present her case through her testimony plus the testimony of any other persons with personal knowledge, together with such documents as are admissible in evidence.

The default judgment hearing was convened pursuant to Rule 55(b), Fed. R. Civ. P., on November 27, 2006. Ms. Carney testified at the hearing, as did her long-time friend John Arenz, and the statement of John Arenz was received in evidence as Exhibit C-1, while Ms. Carney's statement was received in evidence as Exhibit C-2.

Ms. Carney requested also the testimony of John Arenz' brother, William Arenz, a resident of Milmay, New Jersey. The Arenz brothers had become estranged and William was apparently unwilling to appear voluntarily. This Court's Order, filed November 28, 2006, granted plaintiff's application for the issuance of a subpoena and directed the United States Marshal to serve the trial subpoena upon William Arenz to secure his attendance at trial, which resumed on December 13, 2006. William Arenz appeared with counsel in response to the subpoena and testified on December 13, 2006, examined by Ms. Carey and by the Court. The plaintiff rested, and the Court reserved decision at that time. The Court received no testimony from defendant Hargrave, nor did Plaintiff offer any documents into evidence that were either authored by him or referred to him.

The Court finds the following findings of fact and conclusions of law for purposes of entertaining the entry of default judgment under Rule 55(b), Fed. R. Civ. P.

FINDINGS OF FACT

1. Plaintiff Helen Rita Carney formerly resided in a twin home located at 814 Cumberland Street in Gloucester, New Jersey. Her Complaint alleges that John Hargrave, a Gloucester City housing inspector, took steps against her to induce her landlord, William Arenz, to evict her because she allegedly complained about Hargrave to unnamed public officials in Gloucester City and Camden County.

2. Her Complaint, filed April 24, 2003, alleged that Hargrave failed to take action against a neighbor, Robert Brandt, when Brandt gutted his property next door and caused a nuisance to arise. She alleged that Brandt poked holes into the common wall of their twin home and that vermin found their way into her home and that drug users occupied Brandt's home. She alleged that Hargrave was a friend of Brandt and that Hargrave turned a blind eye toward Brandt's alleged property violations while citing Carney's landlord, William Arenz, with some 49 violations. She alleges that her property was actually in good shape, and that inspection by HUD, prior to and after the Gloucester City inspection, found no violations, while Gloucester City, through Hargrave, found approximately 49 violations, as a pretext to cause her eviction.

3. She alleged that Mr. Hargrave told her landlord, William Arenz, that unless he got rid of her as a tenant, the landlord would face $12,000 in fines for the violations. She alleges that her landlord had no choice but to evict her.

4. The actual facts proved at the hearing fell far short of what Ms. Carney alleged. She offered no proof that Hargrave and Brandt are friends. There was no admissible evidence that Hargrave told her landlord that she should be evicted as a troublemaker. When her landlord, William Arenz, was specifically asked these questions, he denied that Hargrave ever came to him and told him to evict Helen Carney.

5. William Arenz testified that he didn't know Hargrave personally and that he had met him only fleetingly. Although Ms. Carney testified as to what William Arenz allegedly told her about Hargrave's threat, her statement is double-hearsay, because it is her recollection of what William Arenz told her that Hargrave had said. She does not allege that she was present when this threat was made, nor is there any proof that William Arenz followed through with any such threat.

6. In fact, the proofs at the hearing were that Ms. Carney continued to live in the twin house even after the complaint was filed herein, until July 17, 2003, when the home was partially destroyed by fire. She was not permitted by the Fire Marshal to take possession of her apartment, and ...


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