United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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)).
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.
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.
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.
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).
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.
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