United States District Court, D. New Jersey
Pontell Bryant, Plaintiff Pro Se, Bayside State Prison, Leesburg, New Jersey,
Gregory R. Bueno, Esq., Office of the Attorney General, Trenton, New Jersey, Attorney for Defendants, Higbee, Herman, Bagliani, & Valle.
JEROME B. SIMANDLE, Chief District Judge.
This matter comes before the Court on pro se Plaintiff Pontell Bryant ("Plaintiff") motion for default judgment (Docket Entry 37), and Defendants Bagliani and Rivera's cross-motion to vacate an entry of default and to extend time to answer, (Docket Entry 38). These motions are being decided on the papers pursuant to Fed. R. Civ. Pro. 78(b). For the reasons set forth below, Plaintiff's motion for a default judgment is denied, and Defendants' cross-motions are granted.
II. Procedural History
Plaintiff, a convicted and sentenced state prisoner, filed a complaint on May 2, 2013 asserting claims of excessive force, cruel and unusual punishment, retaliation, and denial of medical care against Defendants S/C.O. Herman, S/C.O. Higbee, S/C.O. Jackson, Sgt. Janda, S/C.O. Rivera,  and John Doe officers while Plaintiff was incarcerated at South Woods State Prison ("SWSP"). (Docket Entry 1). By Order dated January 27, 2014, this Court granted Plaintiff leave to proceed in forma pauperis and permitted the complaint to proceed beyond sua sponte dismissal pursuant to 28 U.S.C. § 1915A. (Docket Entry 2).
Summonses were issued as to all Defendants. ( See Docket Entry 3.) The summonses issued to Defendants Jackson and Janda were returned unexecuted on March 21, 2014. (Docket Entry 6). A designated Department of Corrections ("DOC") official accepted service on behalf of Defendants Higbee, Rivera, and Herman on March 19, 2014. (Docket Entry 7). Another official accepted service on behalf of Defendant Bagliani on May 8, 2014.
On June 19, 2014, Plaintiff moved for an entry of default against all defendants as no answers had been filed within the time allotted by the federal rules. (Docket Entry 22). The Clerk of the Court entered default on June 24, 2014. Plaintiff filed a motion for default judgment on July 23, 2014. (Docket Entry 25). This Court denied the motion on August 28, 2014 for failure to comply with Federal Rule of Civil Procedure 55. (Docket Entry 26). The Court permitted Plaintiff to file a motion for default judgment under Rule 55(b)(2), and instructed him to provide an accompanying affidavit or other documentary evidence justifying his claim of liability and an award of damages, and to explain how the damages are calculated. (Docket Entry 26 at 6). A copy of the Court's order was mailed to the Attorney General of the State of New Jersey as a courtesy intending to prompt an inquiry regarding the apparent inattentiveness of the DOC to the summonses. (Docket Entry 27). No response from the Office of the Attorney General was forthcoming.
Plaintiff filed another motion for default judgment on September 5, 2014. (Docket Entry 28). On November 13, 2014, this Court again denied the motion as Plaintiff had not complied with the Court's August 28 Order. (Docket Entry 30). The Court permitted Plaintiff to file one more motion for default judgment, and specifically noted that
Plaintiff's motion must be filed with affidavit testimony or other evidentiary documents explaining the evidence of liability and damages, in the manner specified by the Court's August 25, 2014 Order and by this Order. Should Plaintiff fail to comply with the Court's Order for a second time, Plaintiff's motion may be denied with prejudice.
(Docket Entry 30 at 4-5 (internal citation omitted)). A copy of the order was mailed to the New Jersey Attorney General's Office. (Docket Entry 31).
On December 14, 2014, a representative of the New Jersey Attorney General's Office filed a letter with the Court acknowledging receipt of the November 13, 2014 order. (Docket Entry 32). The letter indicated that the summonses had been misplaced by the DOC after service, resulting in the named officers being unaware there were proceedings against them. (Docket Entry 32). The letter further indicated that the Office of the Attorney General was in the process of determining whether it would represent the officers. (Docket Entry 32).
Defendants Herman and Higbee, having been approved for representation by the Office of the Attorney General, filed a motion to set aside the entry of default and to extend their time to answer or otherwise respond to the complaint. (Docket Entry 33). By Order dated February 3, 2015, Magistrate Judge Ann Marie Donio granted the unopposed motion and permitted ...