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Thomas v. Bird

United States District Court, D. New Jersey

December 19, 2018

FRED THOMAS JR., Plaintiff,
v.
LOUIS BIRD, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on a Motion by Plaintiff Fred Thomas Jr., (“Thomas”) for Leave to File a Second Amended Complaint. ECF No. 93. Defendants oppose Plaintiff's Motion. ECF No. 96. The Court has fully reviewed the submissions of the parties and considers same without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, Plaintiff's Motion for Leave to File a Second Amended Complaint is DENIED.

         I. BACKGROUND [[1]]

         Plaintiff was a prisoner at Burlington County Jail in Mount Holly, New Jersey when he filed the initial Complaint on December 6, 2012, alleging violations of his civil rights under 42 U.S.C. § 1983 related to his confinement. ECF No. 1, 85. Plaintiff alleges Defendants “Sco. L. Bird, Sgt. Barnwell and C.O. Davis, without provocation or justification, assaulted Plaintiff, kicking and punching him while he attempted to cover himself.” ECF No. 85 at ¶¶ 13-15. Plaintiff alleges Defendants also pulled his hair out and sprayed him with mace or pepper spray. Id. at ¶¶ 15-16. After handcuffing Plaintiff and leading him into a detention cell, Defendant Davis continued to beat Plaintiff and pulled out his dreadlocks. Id. at ¶¶17-18. As a result of the attack, Plaintiff suffered serious physical injuries, including to his back, and can not regrow hair where the dreadlocks were pulled out. Id. at ¶ 22.

         Plaintiff filed his Complaint in December 2012. ECF No. 1. An Order granting Plaintiff's accompanying application to proceed in forma pauperis was recorded in July 2013. ECF No. 2. That Order also provided that summons were to be issued, to be served by the United States Marshals Service. Id. However, in June 2014 when Plaintiff applied for Default to be entered against Defendants, the Clerk of the Court responded that Default could not be granted because “Defendants have not been served with the Summons and the Complaint.” ECF No. 12; see also Clerk's June 19, 2014 Docket Entry. In May 2015, U.S. District Judge Michael A. Shipp again ordered that summons should be issued, to be served by the Marshals Service. ECF No. 19. On September 2, 2015, summons to C.O. Davis, Sgt. Barnwell and Sco. L. Bird were returned by the Marshals Service unexecuted. ECF No. 22. Handwritten comments on the Process Receipt and Return Form indicated that Sco. L. Bird “does not work at the Burlington Cty. Jail. Please check the correct spelling of the individual's name to be served.” Id. at p.1. The comments indicated Sgt. Barnwell “retired from the Burlington Cty. Jail, ” and that “[t]here are numerous officers with the last name of Davis. You must have a first and last name for service.” Id. at pp. 4, 7 (emphasis in original). On December 21, 2015, Judge Shipp ordered the Clerk to serve a copy of the Complaint on the Burlington County Jail “for the purpose of obtaining the contact information of the named-defendants.” ECF No. 24. On April 18, 2016, Judge Shipp extended the time for Plaintiff to serve Defendants and ordered that the “Burlington County Department of Corrections shall provide the last known addresses of Defendants or accept service on their behalf.” ECF No. 27. In response, Mildred Scholtz, then Warden of the Burlington County Department of Corrections, in a letter dated June 1, 2016, provided a last-known address for a “Sgt. Barnwell” and stating that there was “no corrections officer, current or former, named ‘Sco. L. Bird' with our facility under that spelling or designation.” ECF No. 30 (sealed). On June 6, 2016, a Summons was issued to Sgt. Barnwell at the address provided by Ms. Scholtz. ECF No. 31. The Summons was returned unexecuted in July 2016. ECF No. 34. In August 2016, Judge Shipp ordered that the “U.S. Marshal shall, within 30 days from of this text order, file an affidavit describing the circumstances surrounding the service of Defendant Sgt. Barnwell that led to the unexecuted summons. In particular, the Marshal shall inform the Court whether Defendant Barnwell affirmatively refused service.” ECF No. 36. On September 7, 2016, the Summons to Sgt. Barnwell was returned as having been executed on September 6, 2018. ECF No. 37. During the next two months, counsel for Defendant Barnwell entered an appearance, applied for an extension for filing an answer and moved to dismiss the Complaint. ECF Nos. 38, 39, 41. Concomitantly, Plaintiff and the Court exchanged correspondence regarding service on the other named defendants. ECF Nos. 40, 43, 46. On March 30, 2017, Judge Shipp issued an Order to Show Cause in which Plaintiff was directed to explain why the Complaint should not be dismissed as to “C.O. Davis.” ECF No. 49. This correspondence was complicated by, as at least fourteen docket entries explain, mail to Plaintiff that was returned as undeliverable. ECF Nos. 53, 55, 58, 60, 62, 64-67, 71-73, 75, 78. The communication issues stemmed at least in part from Plaintiff's transfers among various New Jersey Department of Corrections locations. Id. In the meantime, Defendant Barnwell's Motion to Dismiss was denied, and Defendant Barnwell filed an Answer to the Complaint. ECF Nos. 48, 50. In September 2017, Plaintiff moved for the appointment of pro bono counsel. ECF No. 61. That motion was granted in December 2017. ECF No. 77. Plaintiff's counsel filed notices of appearance in January 2018. ECF No. 79-80. In April 2018, Plaintiff filed an Amended Complaint. ECF No. 85. Among other things, that Amended Complaint more fully identified the non-Barnwell defendants as Louis Byrd and Demetrius Davis. Id. Defendants Byrd and Davis filed an Answer to the Amended Complaint on May 2, 2018. ECF No. 86. On August 31, 2018, Plaintiff filed the instant Motion seeking Leave to File a Second Amended Complaint. ECF No. 93. Defendants oppose the motion. ECF No. 96.

         II. LEGAL STANDARD

         A party may amend its pleading once as a matter of right within either (1) twenty-one days of serving it; or (2) where the pleading is one to which a responsive pleading is required, the earlier of twenty-one days following service of the responsive pleading or a motion to dismiss. Fed.R.Civ.P. 15(a)(1). Once those deadlines have expired, “a party may amend its pleading only with the opposing party's written consent or the court's leave” and “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a). The decision to grant leave to amend rests within the sound discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 330 (1970). In determining a motion for leave to amend, courts consider the following factors: “(1) undue delay on the part of the party seeking to amend; (2) bad faith or dilatory motive behind the amendment; (3) repeated failure to cure deficiencies through multiple prior amendments; (4) undue prejudice on the opposing party; and/or (5) futility of the amendment.” See Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

         III. DISCUSSION

         Plaintiff filed the instant motion seeking to add one count against a new defendant, Mildred Scholtz, Warden of the Burlington County Jail from early 2015 through April 2018. Pl. Br. in Support of Mot. to Amend, ECF No. 93-1 at p.5. Plaintiff alleges Ms. Scholtz violated his “constitutional right to access the courts under the First and Fourteenth Amendments” and his rights under 42 U.S.C. § 1983 by improperly concealing information Judge Shipp required County Jail officials to provide via the December 21, 2015 and April 18, 2016 Orders referred to above, namely contact information for Defendants Davis and Byrd. Id. See also ECF Nos. 24, 27. Plaintiff contends Ms. Scholtz's concealment delayed by more than two years Plaintiff's ability to serve Defendants. Id.

         As an initial matter, Plaintiff urges that in the Third Circuit “pro se plaintiffs have been granted even more freedom when seeking leave to amend a pleading.” Pl.'s Br. in Support of Mot. at p.5, citing Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir. 1981). But, the Court observes that Plaintiff stopped being a pro se plaintiff when this Court granted Plaintiff's Motion to Appoint Pro Bono counsel in December 2017. ECF No. 77. Plaintiff's pro bono counsel filed a notice of appearance the following month. ECF No. 79. Thus, on its face Weaver is inapplicable. That said, the Court observes that the Order granting Plaintiff's Motion to Appoint Pro Bono was granted in December 2017, or after the bulk of the delays chronicled above had occurred. Thus, the Court approaches this motion with the liberality due a pro se plaintiff called for by Weaver.

         Plaintiff says the touchstone for granting a motion to amend is whether it would result in prejudice to defendants. Pl.'s Br. at p.5 (citing Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir. 1993). To that end, Plaintiff cites the three-prong test set forth in Long v. Wilson as setting the Third Circuit's inquiry into the potential of a proposed amended complaint to unduly prejudice Defendants, where the Long factors are: (1) whether permitting the amendment would “require the non-movant to expend significant additional resources to conduct discovery and prepare for trial, (2) significantly delay resolution of the dispute, or (3) prevent a party from bringing a timely action in another jurisdiction.” Id. (citing Long, 393 F.3d 390, 400 (3d Cir.2004). Plaintiff contends the granting of the instant motion would not result in prejudice to Defendants, because any additional discovery merited by a Second Amended Complaint would be minimal, as would any delay. Id. at p.11.

         As stated above, in determining a motion for leave to amend, courts consider the following factors: “(1) undue delay on the part of the party seeking to amend; (2) bad faith or dilatory motive behind the amendment; (3) repeated failure to cure deficiencies through multiple prior amendments; (4) undue prejudice on the opposing party; and/or (5) futility of the amendment.” See Great Western, 615 F.3d at 174 (quoting Foman, 371 U.S. at 182).

         Looking at Plaintiff's briefs through the prism of the Great Western factors, Plaintiff says granting the Motion would not cause undue delay, that it is proffered in good faith, that there would be no undue prejudice to Defendants, and that the Amendment would not be futile. Plaintiff adds that he has been diligent in presenting these allegations, explaining that he was unable to deduce Ms. Scholtz's conduct until pro bono counsel was named, as the June 2016 correspondence from Ms. Scholtz to the Court in response to the above-mentioned Court Orders was filed under seal and thus unavailable to Plaintiff. Id. Once the motion to appoint pro bono counsel was granted, Plaintiff's counsel was able to gain access to that sealed correspondence, which stated that “[t]here is no correctional officer, current or former, named ‘Sco. L. Bird' with our facility under that spelling and designation.” Id. Ultimately, however, Plaintiff was able to name as a defendant Louis Byrd in an Amended Complaint. ECF No. 85. And, an Answer was filed by all three Defendants a month later. ECF No. 86.

         Plaintiff contends the proposed second Amended Complaint would not be futile because it “alleges all of the required elements to bring this claim.” Id. Plaintiff cites Gibson v. Superintendent of N.J. Dep't of Law and Pub. Safety-Div. of State Police as setting the standard for concealment as, “where the state officials wrongfully and intentionally conceal information crucial to a person's ability to obtain redress through the courts, and do so for the purpose of frustrating that right, and that concealment and the delay engendered by it substantially reduce the likelihood of one's obtaining the relief to which one is otherwise entitled.” Id. at 11-12 (quoting Gibson, 411 F.3d 427, 445 (3d Cir. 2005). Plaintiff contends Ms. Scholtz “wrongfully and intentionally concealed information while serving as Warden at the Burlington County Jail” and that the information concealed “was critical to obtaining redress from the courts because he needed the information to serve the defendants.” Id. at 12. Plaintiff says the Motion is timely because it is “well within the statute of limitations for bringing” such a claim. Id. The statute of limitations on a § 1983 claim, Plaintiff says, “begins to accrue when the plaintiff knows, or has reason to know, of the injury on which the action is based.” Id. (citing Mullen v. Port Authority of New York and New Jersey, 100 F.Supp.2d 249, 260 (D.N.J. 1999). Plaintiff contends he did not know of Ms. Scholtz's concealment earlier because her correspondence was filed under seal, meaning it was for Attorneys' Eyes Only, and so was not accessible by Plaintiff. Id. It was not until pro bono counsel was appointed that Plaintiff ...


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