United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
before the Court is Defendants motion summary judgment
brought pursuant to Federal Rule of Civil Procedure 56. (ECF
No. 76). Despite being provided an extension of time within
which to do so, Plaintiff has failed to timely file either a
response to the motion or a statement of material facts in
dispute. For the following reasons, this Court will grant the
motion and will enter judgment in this matter in favor of
operative amended complaint (ECF 68), Plaintiff raises three
claims arising out of events that occurred while he was
incarcerated in Northern State Prison in June 2014.
Specifically, Plaintiff contends that a corrections officer,
Defendant McGill, used excessive force by striking him with a
stack of papers causing him to suffer injuries to his hip and
lower back, that Defendant Wasik failed to intervene to
prevent or end McGill’s alleged use of excessive force,
and that the New Jersey Department of Corrections was
negligent in training and/or supervising McGill and Wasik.
(Id. At 1-3). Plaintiff thus seeks to raise claims
for violations of his Eighth Amendment rights against McGill
and Wasik, and state law negligence claims against the
described the incident in question during his deposition in
this matter. According to Plaintiff, on June 6, 2014, he was
passing through a security checkpoint and two young female
corrections officers were examining “two oversized
envelopes full of about 300 papers . . . each” that
contained his legal papers. (Document 7 attached to ECF No.
76 at 3). Plaintiff asked the two women not to mix the
paperwork as he had previously organized the papers.
(Id.). In response to his request, Defendant Wasik
arrived and began to ask what was going on, resulting in him
“cursing” and verbally berating Plaintiff in a
fashion “resemble[ing] something like . . . the
beginning of a WWF [match].” (Id.). After
about a minute of such verbal, abuse, Defendant McGill
arrived and joined in “cursing and yelling at”
Plaintiff. (Id.). McGill thereafter picked up
Plaintiff’s papers and “slammed it into
[Plaintiff], just extending his arms.” (Id.).
By Plaintiff’s estimation, McGill didn’t
“want to hurt” him, but “slammed” the
stack of papers into him harder than intended.
(Id.). This resulted in Plaintiff stumbling, which
caused him to place weight onto a previously injured hip,
which ultimately led to Plaintiff suffering continual hip and
back pain. (Id. At 3-4). Although Plaintiff was
surprised by the incident he “didn’t think it was
a big deal” at the time. (Id. At 8). During
this incident, Wasik never made more than minimal contact
with Plaintiff, if any. (id. At 7). Plaintiff
described the incident as “fast occurring” and
stated at his deposition that he didn’t believe that
Wasik could really have stopped the shove as everyone was
“in shock” as to its occurrence, but instead that
he believed Wasik was culpable based on his having been
involved in the verbal confrontation prior to the shove with
the papers. (Id. At 13).
to Rule 56, a court should grant a motion for summary
judgment where the record “shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The moving party bears the initial burden of
“identifying those portions of the pleadings
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). A factual dispute is material “if it bears
on an essential element of the plaintiff’s
claim,” and is genuine if “a reasonable jury
could find in favor of the non-moving party.” Blunt
v. Lower Merion School Dist., 767 F.3d 247, 265 (3d Cir.
2014). In deciding a motion for summary judgment a district
court must “view the underlying facts and all
reasonable inferences therefrom in the light most favorable
to the party opposing the motion,” Id., but
must not make credibility determinations or engage in any
weighing of the evidence. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, [however,] there is no genuine
issue for trial.” Matsuhita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
the moving party has met this initial burden, the burden
shifts to the non-moving party who must provide evidence
sufficient to establish that a reasonable jury could find in
the non-moving party’s favor to warrant the denial of a
summary judgment motion. Lawrence v. Nat’l
Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir.
1996); Serodio v. Rutgers, 27 F. Supp. 3d 546');">27 F. Supp. 3d 546, 550
(D.N.J. 2014). “A nonmoving party has created a genuine
issue of material fact if it has provided sufficient evidence
to allow a jury to find in its favor at trial. However, the
party opposing the motion for summary judgment cannot rest on
mere allegations, instead it must present actual evidence
that creates a genuine issue as to a material fact for
trial.” Serodio, 27 F. Supp. 3d at 550.
Plaintiff’s failure to timely respond
the filing of Defendants’ motion for summary judgment
in this matter, Plaintiff requested both an extension of time
within which to file a response and further discovery. (ECF
No. 78). On November 15, 2018, Magistrate Judge Mannion
granted Plaintiff an extension of time to respond and
permitted Plaintiff to file his response on or before
November 30, 2018, but denied Plaintiff’s remaining
requests. Plaintiff did not file a response to the motion by
November 30. Instead, on December 17, 2018, this Court
received from Plaintiff a late motion for an extension of
time to respond to the summary judgment motion (ECF No. 81)
and a request (ECF No. 80) to have this Court rule upon two
previous filings Plaintiff submitted more than a year ago - a
letter request that this Court reconsider Judge
Mannion’s denial of counsel (see ECF No. 43;
ECF No. 53-54), and a second request for counsel to aid
Plaintiff in seeking further medical examinations to support
his claims (ECF No. 63). To the extent that Plaintiff, in
filing these requests for counsel, sought to appeal to this
Court Judge Mannion’s denial of his motion for the
appointment of counsel, those requests (ECF Nos. 53-54, 63)
are denied for the reasons set forth by Judge Mannion in
denying Plaintiff’s previous request for counsel. (ECF
No. 43). Specifically, because the legal issues in this
matter are not complex, because Plaintiff has shown himself
capable of presenting his case insomuch as he has ably
presented his claims and filed numerous motions in this
matter, and because expert testimony will not be required to
determine whether Plaintiff is entitled to relief for the
reasons expressed below, the appointment of counsel is
unwarranted in this matter. See, e.g., Montgomery v.
Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). This Court
therefore upholds Judge Mannion’s order denying
Plaintiff the appointment of counsel (ECF No. 43), and denies
Plaintiff’s reasserted request for the appointment of
counsel. (ECF Nos. 53-54, 63, 80-81).
most recent letters, Plaintiff also requests an additional
extension of time within which to respond to the currently
pending summary judgment motion. (ECF Nos. 80-81).
Plaintiff’s requests, however, were composed on
December 7th and 10th, a week and more
after the extension granted by Judge Mannion had elapsed.
Pursuant to Local Civil Rule 6.1(a)(2), all requests for an
extension of time must be submitted “prior to the
expiration of the period sought to be extended.” Where
a request for an extension of time is submitted “after
the time has expired,” an extension request may only be
made on a showing of both good cause for an extension and a
showing that the party failed to make a timely request
because of excusable neglect. Fed R. Civ. P. 6(b)(1)(B).
Because Plaintiff filed these requests after his first
extension of time had expired, and because Plaintiff has not
explained why he could not have filed these same requests
prior to the expiration of his first extension of time, this
Court finds that he has not shown that his failure to file a
timely extension request was the result of excusable neglect.
Plaintiff’s extension requests are therefore denied.
Plaintiff has failed to respond to Defendants’ motion
in a timely fashion despite the extension he was granted,
Plaintiff has failed to file a responsive statement of
material facts in dispute. Pursuant to Federal Rule of Civil
Procedure 56(e)(2) and Local Civil Rule 56.1, where the
moving party files a proper statement of material facts, as
Defendants did in this matter, and the non-moving party fails
to file a responsive statement of disputed material facts,
this Court is free to consider the moving party’s
statement of material facts undisputed and therefore admitted
for the purposes of resolving the motion for summary
judgment. See, e.g., Ruth v. Sel. Ins. Co., No.
15-2616, 2017 WL 592146, at *2-3 (D.N.J. Feb. 14, 2017).
Although the Court shall consider Defendants’ statement
of material facts admitted for the purposes of deciding this
motion, this Court is still required to “satisfy itself
that summary judgment is proper because there are ...