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Milton Durham v. Njsp-Co Vekios

August 22, 2011


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



Presently before the Court is an appeal by Plaintiff, pro se Milton Durham ("Plaintiff") from an Order dated February 14, 2011 (the "February 14 Order") by Magistrate Judge Douglas E. Arpert ("Magistrate Judge") denying, in relevant part, the following: (1) Plaintiff's request for a 90 day extension to amend his Complaint; (2) an Order that Defendants "cease and desist interference with Plaintiff['s] access to the Court"; and (3) a prior request by Plaintiff to delay deductions from Plaintiff's inmate account for the $350 filing fee (Dkt. 11). In addition, the Court will consider a Motion for Injunctive Relief filed by Plaintiff on June 7, 2011. For the reasons that follow, the Court denies Plaintiff's appeal and will affirm the Magistrate Judge's February 14 Order in its entirety. In addition, the Court will deny Plaintiff's Motion for Injunctive Relief.


On October 22, 2009, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights, and, specifically, that on October 6, 2007, while Plaintiff was returning to his cell from the showers, Defendant Vekios came into Plaintiff's unit yelling insults and foul language at Plaintiff. In addition, Plaintiff alleges that moments after his cell door closed, Vekios punched Plaintiff on the side of his head with his fist. Plaintiff alleges that he received medical treatment the next day, after he submitted a medical request form. Plaintiff also named as a defendant administrator Michelle Ricci, whom he alleged failed to protect him from the assault and failed to properly train and/or supervise Defendant Vekios.

In an opinion dated December 22, 2010, this Court granted Plaintiff in forma pauperis status and permitted him to proceed with a civil suit alleging Eighth Amendment violations against Defendant Vekios and to amend his complaint by January 22, 2011. Dkt. No. 9. However, the Court dismissed Plaintiff's claim against Ricci and denied plaintiff's request for counsel without prejudice. On January 14, 2001, Plaintiff requested that the Magistrate Judge delay the statutory deductions of $350 -- the amount of the court filing fee -- from his inmate account for a period of one year. On February 3, 2011, Plaintiff moved for an additional ninety-day extension to file an Amended Complaint, for a further thirty-day extension to amend this complaint, and for an Order requiring the Defendant to stop "interfering with Plaintiff's access to this Court by confiscating legal and writing material and to provide a [sic] inmate paralegal trained in Federal civil law." Dkt. No. 13 at 1. On February 14, 2011, the Magistrate Judge granted Plaintiff a thirty-five day extension, until March 21, 2011, to file an Amended Complaint and denied Plaintiff's other requests. Plaintiff never filed an Amended Complaint and, on March 4, 2011, Plaintiff filed the instant appeal of the Magistrate Judge's February 14 Order.

Thereafter, on June 7, 2011, Plaintiff filed a Motion for Injunctive Relief in which he sought the "return of legal materials taken from his cell by prison guards [on] March 17, 2011" and, it appears, an Order restraining the Department of Corrections from confiscating his property in the future. See Pl's Mot. at 3.



A. Standard of Review

A Magistrate Judge may "hear and determine any [non-dispositive] pretrial matter pending before the court." Cardona v. Gen. Motors Corp., 942 F. Supp 968, 971 (D.N.J.1996) (quoting 28 U.S.C. § 646(b)(1)(A)); see also Fed. R. Civ. P. 72(a). A higher court will only reverse a Magistrate Judge's decision on such non-dispositive issues if the decision is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); accord Fed. R. Civ. P. 72(a); Local Civ. R. 72.1(c)(1). A Magistrate Judge's finding is clearly erroneous, even if there is some evidence to support it, when the reviewing court "is left with the definite and firm conviction that a mistake has been committed" after considering the entirety of the evidence. Dome Petroleum Ltd. v. Employers Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990) (quotations omitted). "A district judge's simple disagreement with the magistrate judge's findings is insufficient to meet the clearly erroneous standard of review." Andrews v. Goodyear Tire & Rubber Co., Inc., 191 F.R.D. 59, 68 (D.N.J.2000) (citations omitted).

In contrast, "the phrase 'contrary to law' indicates plenary review as to matters of law." Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992); accord In re Human Tissue Prods. Liab. Litig., No. 06-135(WJM), 2009 WL 1097671, * 1 (D.N.J. Apr.23, 2009) (citation omitted).

See also, Mruz v. Caring, Inc., 166 F. Supp. 2d 61, 66 (D.N.J.2001) ("[T]his Court will conduct a de novo review of a Magistrate Judge's legal conclusions."); accord Cooper Hosp./Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 199, 127 (D.N.J. 1998). "A ruling is contrary to law if the magistrate judge has misinterpreted or misapplied applicable law." Kounelis v. Sherrer, 529 F. Supp. 2d 503, 518 (D.N.J.2008) (citing Gunter v. Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164 (D.N.J.1998)).

When a Magistrate Judge is authorized to exercise discretion, the decision will be reversed only on finding of an abuse of discretion. Lithuanian Commerce Corp. Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 214 (D.N.J. 1997); see also Kresefsky v. Panasonic Communications and Systems Co., 169 F.R.D. 54, 64 (D.N.J. 1996) ("Where, as here, the magistrate has ruled on a non-dispositive matter such as a discovery ...

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