Anderson v. Ellis, Civil Action No. 00-4487 (JBS) (D. N.J. 3/6/2002), Civil Action No. 00-4487 (JBS).
| Decision Date | 06 March 2002 |
| Docket Number | Civil Action No. 00-4487 (JBS). |
| Parties | LOWELL ANDERSON, Plaintiff, v. ATTORNEY GENERAL OF NEW JERSEY, CHARLES ELLIS, Administrator, SERGEANT ROBERTS, LEESBURG STATE PRISON RIOT SQUAD, and JACK TERHUNE, Defendants, |
| Court | U.S. District Court — District of New Jersey |
Mr. Lowell Anderson, MC # 85921 Adult Correction Center New Brunswick, New Jersey, Pro Se Plaintiff.
David Samson Attorney General of New Jersey By: Christopher C. Josephson, DAG Trenton, NJ, Attorneys for Defendants.
Lowell Anderson ("Anderson") is a former state prisoner, recently paroled, who is currently housed at an Immigration and Naturalization Service facility. Anderson alleges that while he was a prisoner at Bayside State Prison in Leesburg, New Jersey, defendants wrongfully beat him and/or failed to protect him in violation of his Eighth and Fourteenth Amendment rights arising under 42 U.S.C. § 1983. Presently before this Court is one appeal by plaintiff and one motion to dismiss by defendants. Mr. Anderson appeals the July 18, 2001 Letter Opinion and Order of the Honorable Joel B. Rosen, United States Magistrate Judge, which denied plaintiff's application for appointment of legal counsel pursuant to 28 U.S.C. § 1915(e). Defendants move to dismiss the Second Amended Complaint1 pursuant to Rule 12(b)(6), Fed. R. Civ. P., stating that plaintiff has failed to state a claim upon which relief can be granted.2 Both motions are unopposed.3 For the reasons discussed herein, this Court will affirm Judge Rosen's Order denying Mr. Anderson's application for counsel and will grant defendants' motion to dismiss. Plaintiff's claims against defendants Attorney General David Samson, Administrator Charles Ellis, Leesburg State Prison Riot Squad, Jack Terhune, and Sgt. Roberts, in his official capacity only, will be dismissed with prejudice. Plaintiff's claims against Sgt. Roberts in his individual capacity only will be dismissed without prejudice, but such dismissal will be with prejudice unless plaintiff timely files a motion for reconsideration of the statute of limitations adjudication with respect to defendant Roberts not later than twenty (20) days from today's date, as discussed more fully herein.
Plaintiff has been incarcerated at several different state prisons and correctional facilities4 over the last several years. All of plaintiff's claims in this action are related to an incident he alleges5 occurred while he was housed at Bayside State Prison in Leesburg, New Jersey ("Bayside").
The Amended Complaint alleges that on June 20, 1998, while plaintiff was working in the prison kitchen, another inmate splashed hot water from a coffee pot on plaintiff's back. Instinctively, plaintiff spun around, pushed the other inmate back, and began cursing. Plaintiff denies that he intentionally struck the other prisoner and admits that he is not sure whether the splashing was intentional or accidental. Observing the altercation, an unidentified corrections officer called out a "code," which was intended to alert other officers to the altercation, and ordered plaintiff to put his hands on the wall. Plaintiff then alleges that officers in riot gear appeared and placed him in handcuffs before removing him to the infirmary. After he was evaluated by a nurse, plaintiff alleges that he was taken to a room, stripped naked, and beaten by several unidentified riot squad officers in the presence of defendant Sgt. Roberts. Plaintiff does not clearly allege that Sgt. Roberts participated in the beating, but he does allege that Roberts was present during and oversaw the attack.
After the alleged beating at Bayside, plaintiff was immediately transferred to Southern State Prison. While at Southern State, plaintiff was examined by another nurse, Barbara Roth, R.N. Roth noted that plaintiff complained of right back pain and headaches from a bullet in his head.6 Examination revealed a small lump above the right ear, right flank and back tenderness and swelling, and multiple old scars on plaintiff's chest. (See Compl., Medical Rec. Ex., Jun. 20, 1998, 12:00 p.m.) No other signs of trauma were noted. (Id.) A subsequent examination that day revealed that plaintiff was oriented and denied any pain or discomfort. (Id., 4:00 p.m. Medical Rec.)
An August 12, 1998 x-ray read by Albert Thibeaux, M.D. revealed a large metallic fragment, presumably the bullet in plaintiff's head, just posterior to the left orbit. (See Compl., Medical Rec. Ex., Internal Radiology Grp. Record # 276829.) On September 24, 1998, plaintiff sought medical assistance at East Jersey State Prison for severe head pain and vomiting. (See Compl., Medical Rec. Ex., Sep. 24, 1998.) Plaintiff reported that he felt the bullet in his head had moved and also that he could not eat or sleep. (Id.) Darvocet was prescribed. On September 25, 1998 plaintiff again sought treatment. Examination revealed no deficiencies and Darvocet was prescribed. (Id., Rec. Sep. 25, 1998.) On October 9, 1998, Ethan Tarasov, M.D. performed a head CT. The CT revealed a bullet "directly adjacent to the greater ring of the sphenoid on the right side in close proximity to the optic canal." (See Compl., Medical Rec. Ex., Oct. 10, 1998.)
On December 15, 1999, plaintiff filed a complaint in Cumberland County Superior Court. This Complaint, as discussed more fully below, was dismissed on August 2, 2000, for lack of prosecution by plaintiff pursuant to N.J. Ct. R. 1:13-7. On September 11, 2000, plaintiff Anderson's federal Complaint was received by the Clerk of Court, and included attachments made up of his submissions in Cumberland County. On September 25, 2000, plaintiff Anderson's Amended Complaint, adding Terhune as a defendant, was received. On November 6, 2000, the Court granted in forma pauperis status and the Complaint, alleging violations of his civil rights and 42 U.S.C. § 1983, was filed. On January 10, 2001, Judge Rosen denied plaintiff's motion for pro bono counsel without prejudice. On March 8, 2001, defendants filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief can be granted. On June 1, 2001, Judge Rosen denied plaintiff's second application for pro bono counsel. On August 2, 2001, plaintiff was granted leave to file an Amended (Supplemental) Complaint. On August 20, 2001, defendants filed a motion to dismiss the Amended Complaint. On September 4, 2001, plaintiff appealed to this Court from Judge Rosen's Order denying him pro bono counsel.
For the reasons stated herein, Judge Rosen's Order will be affirmed, defendants' motion will be granted, and plaintiff's Complaint and Amended Complaint will be dismissed.
"A United States Magistrate Judge may 'hear and determine any [non-dispositive] pretrial matter pending before the court.'" Cardona v. General Motors Corp., 942 F. Supp. 968, 970 (D.N.J. 1996)(quoting 28 U.S.C.§ 636(b)(1)(A)); see also Fed. R. Civ. P. 72(a); L. Civ. R. 72.1a(1). "In all non-dispositive pre-trial matters, a magistrate judge may issue an opinion and order." Id. A party objecting to a magistrate judge's order may, within ten days of service of the order, serve and file objections with the district judge. See Fed. R. Civ. P. 72(a); L. Civ. R. 72.1c(1)(A).
The Federal Magistrates Act of 1968 provides that a district court may reverse a magistrate judge's determination of a non-dispositive issue only if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); accord Fed. R. Civ. P. 72(a); L. Civ. R. 72.1(c)(1); see also Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986), cert. denied, 484 U.S. 976 (1987); Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177 F.R.D. 205 (D.N.J. 1997). "A finding is clearly erroneous only 'when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Cooper Hospital/Univ. Medical Center v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998) (quoting Lo Bosco v. Kure Engineering Ltd., 891 F. Supp. 1035, 1037 (D.N.J. 1995)(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395(1948)); see also South Seas Catamaran, Inc. v. Motor Vessel Leeway, 120 F.R.D. 17 (D.N.J. 1988). In reviewing a magistrate judge's factual determinations, a district court may not consider any evidence which was not presented to the magistrate judge. See Haines v. Liggett Group, Inc., 975 F.2d 81, 92 (3d Cir.1992); Lithuanian Commerce Corp., 177 F.R.D. at 213.
Under the clearly erroneous standard of review, the reviewing court will not reverse the magistrate judge's determination even if the court might have decided the matter differently. See Cardona, 942 F. Supp. at 971 (quoting Toth v. Alice Pearl, Inc., 158 F.R.D. 47, 50 (D.N.J. 1994) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). "On the other hand, this Court will conduct a de novo review of a magistrate judge's legal conclusions." Cooper Hospital, 183 F.R.D. at 127 (citing Lithuanian Commerce Corp., 177 F.R.D. at 214; Haines, 975 F.2d at 91; Lo Bosco, 891 F. Supp. at 1037; Campbell v. International Business Machines, 912 F. Supp. 116, 119 (D.N.J.1996)).
"Where a magistrate judge is authorized to exercise his or her discretion, the decision will be reversed only for an abuse of that discretion." Cooper Hospital, 183 F.R.D. at 127 (citing Lithuanian Commerce Corp., 177 F.R.D. at 214; Kresefky v. Panasonic Communications and Systems Co., 169 F.R.D. 54, 64 (D.N.J.1996)); 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 3069 (). "This deferential standard of review is 'especially appropriate where the Magistrate Judge has...
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