United States District Court, D. New Jersey
L. WOLFSON UNITED STATES DISTRICT JUDGE.
Andre Nance (“Nance” or “Plaintiff”)
is a state prisoner incarcerated at New Jersey State Prison,
in Trenton, New Jersey. He is proceeding pro se with
this civil rights action pursuant to 42 U.S.C. § 1983.
Presently before the Court is a motion to dismiss the
proceeding under Federal Rule of Civil Procedure 12(b)(6),
filed by defendants SCO. Francis Danley, SCO. Richard
DeFazio, and Sgt. Sean Patterson (collectively, “the
Moving Defendants”). (ECF No. 13.) For the following
reasons, the motion is denied without prejudice to the Moving
Defendants raising the same arguments in a properly filed
motion for summary judgment.
BACKGROUND AND MOTION
early 2017, Nance filed a complaint with the Superior Court
of New Jersey, Law Division, Mercer County, asserting claims
against the Moving Defendants and “SCO Daniel”
for violation of the Cruel and Unusual Punishment Clause of
the Eighth Amendment and for assault and battery under New
Jersey tort law. (See Notice of Removal, Ex. A,
Compl., ECF No. 1-1.) Nance alleged that the defendants
“and other rogue correctional officers” had
beaten him in his cell with no provocation. (See Id.
action was removed to this Court on August 25, 2017, and, in
the following weeks, the Moving Defendants filed their
answers to the Complaint. (See ECF Nos. 1-4.) With
the defendants' consent, Nance filed an Amended Complaint
on December 7, 2017, which replaced defendant SCO Daniel,
whom Nance had apparently misidentified, with SCO. Brian
Perkins and also added as a defendant SCO. Jonathan Warren.
(ECF No. 8.) The Moving Defendants filed an Answer to the
Amended Complaint on January 3, 2018. (ECF No. 10.)
the Moving Defendants filed the instant motion, seeking
dismissal of the Amended Complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). (ECF
No. 13.) The Moving Defendants argue that Nance's tort
claims must be dismissed for his failure to comply with the
notice requirement of the New Jersey Tort Claims
(Br. on Behalf of Defs., ECF No. 13-1, at 5-7.) Specifically,
they contend that Nance filed a late notice of tort claim and
was informed that it could not be accepted without judicial
leave to file a late claim. (Id. at 6.) For support,
the Moving Defendants include as exhibits Nance's notice
of tort claim and a letter from the Division of Risk
Management. (Mot., Ex. A, ECF No. 13-2.) The Moving
Defendants contend that they “are unable to locate any
order providing Plaintiff with permission to file a late
claim.” (ECF No. 13-1 at 6-7.)
Moving Defendants also contend that Nance's
constitutional claims must be dismissed under Heck v.
Humphrey, 512 U.S. 477 (1994), because success on
Nance's claims would invalidate a finding that Nance was
guilty of a prison disciplinary charge arising from the same
incident. (Id. at 7-9.) In support of this argument,
the Moving Defendants explain that Nance was found guilty of
assaulting or attempting to assault any person based on a
determination by a disciplinary hearing officer that Nance
had “turned aggressively toward an officer swung a
closed fist at him.” (Id. at 8-9 (internal
quotation marks omitted).) The Moving Defendants include as
exhibits defendant Danley's disciplinary report
concerning this incident and an adjudication form indicating
a hearing officer's finding that Nance was guilty of a
disciplinary infraction. (Mot., Ex. B, ECF No. 13-3.)
Moving Defendants' dismissal motion is procedurally
defective on two grounds, and, accordingly, is denied. First,
the motion is not properly made under Rule 12(b). Under that
rule, a motion to dismiss “must be made before pleading
if a responsive pleading is allowed.” Fed.R.Civ.P.
12(b); see also Visintine v. Zickefoose, Civ. A. No.
11-4678 (RMB), 2012 WL 6691783, at *1 (D.N.J. Dec. 21, 2012).
Here, the Moving Defendants filed their motion on February 9,
2018-over a month after they had filed an Answer to
the Amended Complaint, on January 3, 2018. (See ECF
Nos. 10 & 13.) Furthermore, the motion cannot be
construed as a proper motion for judgment on the pleadings,
under Rule 12(c), because such a motion may only be filed
“[a]fter the pleadings are closed.” Fed.R.Civ.P.
12(c); see also Leyse v. Bank of Am. Nat'l
Ass'n, 804 F.3d 316, 320-21 (3d Cir. 2015); Mele
v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 253 n.1 (3d
Cir. 2004). Here, the pleadings have not been closed, as the
Amended Complaint impleaded two defendants (Perkins and
Warren) who have not filed responsive pleadings. See
Medina v. Cumberland Cty., Civ. A. No. 11-905 (JEI/JS),
2011 WL 1750738, at *1 n.2 (D.N.J. May 3, 2011). Accordingly,
the Moving Defendants' motion is procedurally defective.
even if the Court were to apply the Rule 12(b)(6) standard,
relief could still not be granted. In resolving a Rule
12(b)(6) motion, “courts accept all factual allegations
as true, construe the complaint in the light most favorable
to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to
relief.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (internal quotation marks omitted);
see also Zimmerman v. Corbett, 873 F.3d 414, 417-18
(3d Cir. 2017), cert. denied 138 S.Ct. 2623 (2018).
“As a general matter, a district court ruling on a
motion to dismiss may not consider matters extraneous to the
pleadings.” In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); see also
Bruni v. City of Pittsburgh, 824 F.3d 353, 360 (3d Cir.
Moving Defendants' arguments rely entirely on evidence
extraneous to the Amended Complaint. They argue that
Nance's tort claims are barred by his late filing of a
notice of claim, which they seek to prove by submitting a
copy of the notice of claim and an unsigned copy of a letter
in response to the notice. (See ECF No. 13-2.) While
acknowledging that it is possible for a plaintiff to obtain
leave to file a late notice of tort claim, the Moving
Defendants merely assert, in their motion brief, that they
are “unable to locate any order providing Plaintiff
with permission to file a late claim.” (See
ECF No.13-1 at 6-7.) The Moving Defendants' other
contention, that Heck requires dismissal of
Nance's constitutional claims in light of a disciplinary
adjudication against him, depends entirely on a record
outside of the pleadings, namely a copy of that adjudication.
(Se ECF No. 13-3.)
certain exceptions permit considering extrinsic documents,
the motion exhibits filed here do not qualify. A document may
be considered in this context if it is
“‘integral to or explicitly
relied upon in the complaint.'” In re
Burlington Coat Factory, 114 F.3d at 1426 (quoting
Shaw v. Dig. Equip. Corp., 82 F.3d 1194, 1220 (1st
Cir. 1996)); see also Fallon v. Mercy Catholic Med.
Ctr., 877 F.3d 487, 493 (3d Cir. 2017). The exhibits
submitted by the Moving Defendants were not mentioned, much
less “integral to or explicitly relied upon, ” in
Nance's Amended Complaint. (See ECF No. 8.)
While the Amended Complaint mentions in passing that
disciplinary charges were filed against Nance in connection
with the underlying events, (ECF No. 8 ¶ 22), it
includes no reference to their adjudication, and this fact is
hardly integral to Nance's claim. Although documents that
are “public records” may also be considered on a
dismissal motion, that category includes criminal case
dispositions, letter decisions of government agencies, and
published administrative reports, but does not apply to every
document that might potentially be obtained by a statutory
request for documents. See Pension Benefit Guar. Corp. v.
White Consol. Indus., 998 F.2d 1192, 1197 (3d Cir.
1993); see also Berry v. Klem, 283 Fed.Appx. 1, 3-4
(3d Cir. 2008); see, e.g., In re Rockefeller
Ctr. Props. Sec. Litig., 184 F.3d 280, 292-93 (3d Cir.
1999) (“The reasoning for distinguishing between other
recognized public documents and information obtained through
the Freedom of Information Act is that the public does not
have unqualified access to these documents . . . .”).
Accordingly, the documents submitted by the Moving Defendants
will not be considered as public records in resolving this
Rule 12(d), a motion that presents “matters outside the
pleadings” may be converted a motion for summary
judgment under Rule 56, so long as all parties receive notice
and an opportunity to present pertinent material.
Fed.R.Civ.P. 12(d). The Court declines to exercise its
discretion to convert this motion. See Plumbers'
Local Union No. 690 Health Plan v. Sanofi, S.A., Civ.
No. 15-956 (KM) (MAH), 2016 WL 2757736, at *13 n.9 (D.N.J.
May 11, 2016). Instead, as discovery in this case is on the