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Rasool Jenkins v. Commissioner George Hayman

February 23, 2011

RASOOL JENKINS,
PLAINTIFF,
v.
COMMISSIONER GEORGE HAYMAN, ET AL., DEFENDANTS.



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

OPINION

This matter comes before the Court upon the motion of pro se plaintiff, Rasool Jenkins ("Jenkins") for reconsideration (Docket entry no. 37) of this Court's Opinion and Order entered on May 6, 2010, which dismissed plaintiff's claims alleging false disciplinary charges, denial of disciplinary due process and denial of appointment of counsel. (Docket entry nos. 5 and 6).

It appears that Jenkins first raised his request for reconsideration in a letter to this Court, dated July 26, 2010, which was not docketed until December 3, 2010. (Docket entry no. 27). Jenkins's applications are decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, the motion for reconsideration will be denied.

I. BACKGROUND

In his initial Complaint, Jenkins asserted claims of excessive force, failure to protect and denial of medical care in violation of his Eighth Amendment rights, as well as a claim of retaliation in violation of his First Amendment rights against numerous defendants regarding an incident occurring on or about July 9, 2008. In an Opinion and Order entered on May 6, 2010, this Court, after screening the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, allowed these claims to proceed, but dismissed plaintiff's claims asserting false disciplinary charges and denial of disciplinary due process. The Court also denied without prejudice Jenkins's request for appointment of counsel. See May 6, 2010 Opinion at Docket entry no. 5, pp. 10-30.

On June 23, 2010, Jenkins filed a motion for leave to file an amended Complaint. Although plaintiff's proposed amendment was unclear, it would appear that Jenkins may have intended to amend his Complaint to add factual allegations concerning his attempt to file criminal charges against certain correctional officers at Southern State Correctional Facility ("SSCF") who had "brutally assaulted" plaintiff on or about July 9, 2008. Jenkins attached letters to and from the Superior Court of New Jersey for Cumberland/Gloucester/Salem Vicinage and the Maurice River Municipal Court to document his unsuccessful attempts to file charges. (Docket entry no. 12). On July 15, 2010, defendants' counsel wrote to the Court to inform that, as no responsive pleading had yet been filed, plaintiff's motion to amend his Complaint did not require consent from the opposing party or leave of court pursuant to Fed.R.Civ.P. 15(a)(1)(B). (Docket entry no. 15). The Honorable Lois H. Goodman, United States Magistrate Judge, granted plaintiff's motion to amend his Complaint on September 22, 2010. (Docket entry no. 21).

In a letter addressed to this Court, dated July 26, 2010, Jenkins wrote to complain that defendants' answer to his Complaint was overdue and that certain defendants, namely CO Weinstein, CO Manera and Nurse Hally, had not yet been served.*fn1

On November 17, 2010, Magistrate Judge Goodman issued a text order instructing the parties to notify the Court as to the status of the case within 14 days. On December 1, 2010, defendants again requested an extension to answer the Complaint. Jenkins also wrote to the Court on November 29, 2010, (docket Jenkins also expressed some confusion as to his motion to amend his Complaint, as well as the Court's Opinion and Order of May 6, 2010 which had dismissed his claims of false disciplinary charges and denial of disciplinary due process. This letter was received in chambers in August 2010, but was not docketed until December 3, 2010. (Docket entry no. 27).

On January 17, 2011, Jenkins filed a motion for reconsideration of the Court's Opinion and Order of May 6, 2010, which had dismissed his claims of false disciplinary charges and denial of disciplinary due process. (Docket entry no. 37, docketed on January 21, 2011). Jenkins explained that his delay in seeking reconsideration was due to his inexperience with the law. He stated that his claims should be reinstated because he

entry no. 29), in response to the text order. He again expressed confusion and ignorance as to the law and procedure with regard to his case.

On January 3, 2011, a telephone conference was held before Magistrate Judge Goodman. It was directed that service of the remaining defendants, namely Weinstein and Manera, be accomplished by January 10, 2011, and that an answer be filed by January 24, 2011. (Docket entry no. 33). On January 6, 2011, counsel for defendants wrote to the Court advising that defendant Weinstein agreed to waive service, and that there remained some difficulty in reaching defendant Manera, who had retired from service. Accordingly, Manera's last known address would be provided for Marshal's service on January 12, 2011, if counsel was unsuccessful in reaching defendant before then. A further extension of time to answer was granted on January 7, 2011 for defendants to answer the Complaint by January 24, 2011. (Docket entry nos. 35, 36).

On January 28, 2011, Magistrate Judge Goodman granted defendants' request for an extension of time to answer or otherwise move on behalf of all named defendants by March 1, 2011. (Docket entry no. 38).

was the victim of a "set-up". Jenkins also sought reconsideration of his request for appointment of counsel, citing his ignorance of the law and his inability as a prisoner to locate and interview witnesses concerning his claims.

The defendants filed a letter brief, on February 3, 2011, in opposition to plaintiff's motion for ...


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