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Gary v. Thom

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


October 21, 2010

DERRICK GARY, PLAINTIFF,
v.
MICHELLE P. THOM, DR. SHAN, AND DIANE HOLLENBECK, DEFENDANTS.

The opinion of the court was delivered by: Hillman, District Judge

MEMORANDUM OPINION & ORDER

This matter having come before the Court on the pro se plaintiff's motion for the entry of default judgment pursuant to Federal Civil Procedure Rule 55 on his complaint against defendants for claims, brought pursuant to 42 U.S.C. § 1983, that defendants violated his constitutional rights when they administered a TB test and by tampering with his medical records; and Rule 55 providing that obtaining a default judgment is a two-step process--first, when a defendant has failed to plead or otherwise respond, a plaintiff may request the entry of default by the Clerk of the Court, Fed. R. Civ. P. 55(a), and second, after the Clerk has entered the party's default, a plaintiff may then obtain a judgment by default by either (1) asking the Clerk to enter judgment, if the judgment is a sum certain, or (2) applying to the Court, Fed. R. Civ. P. 55(b); and Plaintiff having requested the entry of default by the Clerk, and the Clerk having entered default on June 30, 2010; and On July 27, 2010, plaintiff having motioned the Court for default judgment pursuant to Rule 55(b)(2); but Defendants having entered their appearance on August 18, 2010 by filing a cross-motion to vacate the entry of default because of plaintiff's failure to properly serve them, and also by filing a motion to dismiss plaintiff's complaint with prejudice because it fails to state a cognizable claim under § 1983; and

It appearing, as pointed out by the Court in its June 30, 2010 Order, that plaintiff has not met his burden of demonstrating that he has properly served the defendants*fn1 (See Docket No. 12 at 3 n.3); and

The Court recognizing that it is a plaintiff's duty to properly effect service onto a defendant, particularly when that plaintiff moves for default, see Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."); and

The Court also recognizing that no default can be entered without a defendant being served properly, see Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985) ("A default judgment entered when there has been no proper service of the complaint is, a fortiori, void, and should be set aside."); and

Moreover, the Court noting that default judgments are disfavored and any doubts concerning whether a default should be vacated "should be resolved in favor of setting aside the default and reaching a decision on the merits," Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 122 (3d Cir. 1983) (citing Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982)); and

The Court further noting that a court may set aside the entry of default for "good cause," Fed. R. Civ. P. 55(c), and that the "decision to set aside the entry of default . . . is left primarily to the discretion of the district court," U.S. v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984); and

The Court finding that the Clerk's entry of default must be vacated due to plaintiff's failure to properly effect service onto defendants, and because of defendants' intentions to defend themselves on the merits in this matter; and

The Court further finding that plaintiff's complaint is substantively deficient, in that plaintiff's claims that (1) he was given a TB test, despite plaintiff telling the nurse he had a previous positive reaction to the test, and (2) his medical records had been tampered with, do not state a claim for an Eighth Amendment violation,*fn2 see Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (explaining that in order to establish a violation of his Eighth Amendment right to adequate medical care, a plaintiff must show (1) a serious medical need, and (2) acts or omissions by prison officials that indicated deliberate indifference to that need); Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) ("[D]eliberate indifference is demonstrated '[w]hen . . . prison authorities prevent an inmate from receiving recommended treatment for serious medical needs or deny access to a physician capable of evaluating the need for such treatment.'"); Farmer v. Brennan, 511 U.S. 825, 837-38 (1994) ("'Deliberate indifference' is more than mere malpractice or negligence; it is a state of mind equivalent to reckless disregard of a known risk of harm."); and

The Court further finding that plaintiff has not articulated any other constitutional protection that the defendants have violated by their alleged conduct; but

The Court also recognizing that Third Circuit precedent "supports the notion that in civil rights cases district courts must offer amendment--irrespective of whether it is requested--when dismissing a case for failure to state a claim unless doing so would be inequitable or futile," Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007);

Consequently,

IT IS HEREBY on this 21st day of October, 2010 ORDERED that plaintiff's motion for default judgment [14] is DENIED; and it is further

ORDERED that defendants' cross-motion to vacate the entry of default [16] is GRANTED, and the Clerk of the Court is directed to vacate the June 30, 2010 entry of default; and it is further

ORDERED that defendants' cross-motion to dismiss plaintiff's complaint is DENIED WITHOUT PREJUDICE; and it is further

ORDERED that plaintiff shall have 30 days from the date of this Order to file a second-amended complaint*fn3 to sufficiently state a viable constitutional claim; and it is further

ORDERED that if plaintiff fails to file an second-amended complaint, or if the second-amended complaint fails to state a cognizable claim following the Court's sua sponte review or renewed motion by defendants,*fn4 plaintiff's case shall be dismissed.

NOEL L. HILLMAN, U.S.D.J


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