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Dykeman v. McGill

United States District Court, D. New Jersey

December 18, 2018

C.O. MCGILL, et al., Defendants.


          Hon. Susan D. Wigenton, United States District Judge.

         Presently 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 Defendants.

         I. BACKGROUND

         In his 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 Department.

         Plaintiff 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).


         A. Legal Standard

         Pursuant 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).

         Once 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.

         B. Analysis

         1. Plaintiff’s failure to timely respond

         Following 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).

         In his 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.

         As 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 ...

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