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Goldberg v. United States
United States District Court, D. New Jersey
December 20, 2018
MARK GOLDBERG, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
L. HILLMAN, U.S.D.J.
1. Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A, because Plaintiff is proceeding in forma
pauperis and is incarcerated, the Court screened
Plaintiff's complaint for dismissal and determined that
the complaint states a First Amendment access to courts claim
and a Fifth Amendment due process claim pursuant to
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 386 (1971), against Defendants
David Ortiz, Caryn Flowers, Laura Coleman, Ms. Clarke,
Rashawn Robinson, James Reiser, Mr. N. Mullins, Ms. M.
Fischer, Ms. Centano, and Mr. T. Vogt. (Docket No. 8.)
2. Currently pending are two motions filed by Plaintiff. The
first motion is for a protective order against Defendant
Michelle Fischer because she allegedly sexually assaulted
Plaintiff during a body search. (Docket No. 16.) The second
motion is for the entry of default by the Clerk's office
against all the Defendants for their failure to appear in the
action despite valid service of process. (Docket No. 26.)
3. The Court must deny both of Plaintiff's motions.
4. As for Plaintiff's motion for the entry of default, in
the Court's complaint screening Order, the Court directed
the Clerk to mail Plaintiff a transmittal letter explaining
the procedure for completing Unites States Marshal
(“Marshal”) 285 Forms (“USM-285
Forms”), and the Court instructed that once the Marshal
received the USM-285 Forms from Plaintiff and the Marshal so
alerted the Clerk, the Clerk was to issue summons in
connection with each submitted USM-285 Form. Thereafter, the
Marshal was to serve summons, the Complaint and the Order to
the address specified on each USM-285 Form, with all costs of
service advanced by the United States. (Id.) The
Clerk complied with the Court's Order, and Plaintiff
completed and returned the 285 Forms, but not for all the
parties who must be served.
5. Pursuant to Fed.R.Civ.P. 4(i)(3), a plaintiff suing a
federal employee in his individual capacity must effect
service in three parts: (1) Plaintiff must serve the
individual employee under Rule 4(e), (f), or (g), and
Plaintiff must serve the United States by serving (2) the
“United States attorney for the district where the
action is brought, ” and (3) the “Attorney
General of the United States at Washington, D.C.” under
6. Plaintiff has only satisfied two of the three parts to
properly effect service. The returns of service filed by the
U.S. Marshals Service state that the summons and complaint
have been served on the individually named Bureau of Prisons
employees (Docket No. 14), and the U.S. Attorney General in
Washington, D.C. (Docket No. 24). Plaintiff has not served
the U.S. Attorney's Office for the District of New
7. This Court cannot order the Clerk to enter default against
any Defendant without valid service of process in accordance
with Rule 4(i)(1). See Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344,
350 (1999) (providing that (1) an “individual or entity
named as a defendant is not obliged to engage in litigation
unless notified of the action, and brought under a
court's authority, by formal process, ” (2)
“service of process, under longstanding tradition in
our system of justice, is fundamental to any procedural
imposition on a named defendant, ” and (3) “[i]n
the absence of service of process (or waiver of service by
the defendant), a court ordinarily may not exercise power
over a party the complaint names as defendant”).
8. With regard to Plaintiff's motion for a protective
order, the Court first finds that Plaintiff's claim
regarding a sexual assault is outside the scope of his
current complaint, and the Court therefore cannot provide
Plaintiff with a remedy for a claim that is not before the
Court. Should Plaintiff wish to pursue such a claim, he must
seek leave of Court to file an amended complaint pursuant to
Fed.R.Civ.P. 15 or file a new action.
9. To the extent that Plaintiff's complaint can be
construed to encompass that claim, and the Court further
construes Plaintiff's motion for a protective order to be
an ex-parte temporary restraining order (“TRO”)
or preliminary injunction application, his application is
both procedurally and substantively defective.
10. To secure the extraordinary relief of a preliminary
injunction or TRO, Plaintiff must demonstrate that “(1)
he is likely to succeed on the merits; (2) denial will result
in irreparable harm; (3) granting the injunction will not
result in irreparable harm to the defendants; and (4)
granting the injunction is in the public interest.”
Maldonado v. Houston, 157 F.3d 179, 184 (3d Cir.
1998), cert. denied, 526 U.S. 1130 (1999) (as to a
preliminary injunction); see also Ballas v. Tedesco,
41 F.Supp.2d 531, 537 (D.N.J. 1999) (as to temporary
restraining order). A plaintiff must establish that all four
factors favor preliminary relief. See Opticians Ass'n
of America v. Independent Opticians of America, 920 F.2d
187 (3d Cir. 1990).
11. Plaintiff relates in his motion, “On April 27,
2018, the Defendant Correctional Counselor Ms. Michelle
Fischer was conducting a body search on the Plaintiff Mark
Goldberg. In the Defendant's body search, she patted down
to Goldberg's penis area and stopped. She grabbed and
then[n] squeezed Goldberg's penis. Defendant then stated
‘What is this?' Goldberg stood silent and Fischer
resumed her search.” (Docket No. 16 at 2.)
12. Plaintiff states that he reported this sexual assault and
that there is a criminal investigation being conducted.
Plaintiff further states that he will ...
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