NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

________________________________

:

ALBERT H. ROBERTS, :

: Civil Action No. 11-1793 (RMB)

Plaintiff, :

:

 v. : MEMORANDUM OPINION AND ORDER

:

KAREN BALICKI, et al., :

:

Defendants. :

_______________________________________ :

This matter comes before this Court upon Plaintiff’s

statement, Docket Entry No. 118, effectively requesting an

opportunity to re-plead some of Plaintiff’s claims. See id.

This matter was commenced more than three years ago when, on

March 17, 2011, Plaintiff executed a civil complaint challenging

the events that had taken place on April 23, 2009, i.e., more

than five years ago. See Docket Entry No. 1. The complaint

raised many claims against various Defendants. See Docket Entry

No. 4. Some of these claims were facially deficient and

warranted sua sponte dismissal; others were set forth in such

terms that this Court, out of an abundance of caution, found it

appropriate to direct service. These other claims raised: (a)

Eighth Amendment denial-of-medical-care challenges against

Defendants Richards and Jilla; (b) Eighth Amendment excessive

force challenges against Defendants Richards, Jilla, Yacovelli,

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Hogan, Horan, McCoy, Lago, Gandy and Volov; and (c) Eighth

Amendment challenges asserting verbal harassment by Defendants

King, Sheldon and Kenlowe. See Docket Entry No. 4; see also

Docket Entry No. 113 at 1. The Court, therefore, directed the

U.S. Marshal to serve summonses upon the aforesaid Defendants. 

See Docket Entry No. 5.

The summonses returned executed as to Defendants Gandy,

Horan, Lago, McCoy, Rogan, Yacovelli and Volov (collectively,

“Served Defendants”). See Docket Entry No. 113 at 1-2. After a

year and a half of litigation, the Served Defendants moved for

summary judgment. That motion was granted, and Plaintiff’s

claims against the Served Defendants were dismissed as not

exhausted administratively. See Docket Entries Nos. 111 and 112. 

A different fate, however, awaited Plaintiff’s claims

against Defendants King, Sheldon, Jilla, Richards and Kenlowe

(collectively, “No-Jurisdiction Defendants”). The summonses

issued as to Defendants King, Sheldon, Jilla and Richards were

returned unexecuted, while the summons issued as to Defendant

Kenlowe produced no record of service. See Docket Entry No. 113

at 2 (detailing the same). This Court, therefore, directed reservice upon Defendant Kenlowe; that re-service verified this

Defendant could not have been served on the basis of the

information provided by Plaintiff. 

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The Court also directed Plaintiff to show cause as to why

his claims against the No-Jurisdiction Defendants should not have

been dismissed for failure to prosecute. See Docket Entries Nos.

113 to 115. When, six months later, no response was received

from Plaintiff, this Court dismissed Plaintiff’s claims against

the No-Jurisdiction Defendants for failure to prosecute. See

Docket Entries Nos. 116 and 117 (relying on Fed. R. Civ. P. 41(b)

and Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d

Cir. 1984)). Noting that Plaintiff failed to comply with his

responsibility to identify the No-Jurisdiction Defendants in a

fashion sufficient for the U.S. Marshal to execute service and

also did not cure the shortcomings of his complaint, this Court

concluded that future litigation against the No-Jurisdiction

Defendants would likely to be highly prejudicial because five

years have passed since the events Plaintiff asserted, the NoJurisdiction Defendants never had notice that they might be haled

to court to litigate these events, and the evidence upon which

the No-Jurisdiction Defendants might have relied could have been

destroyed. The Court also noted that the merits of Plaintiff’s

claims against the No-Jurisdiction Defendants were doubtful

because: (a) Plaintiff’s harassment claims against King, Sheldon

and Kenlowe were non-cognizable in § 1983 review as they were

allegations of purely verbal harassment (such as threats or

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laughter); and (b) Plaintiff’s excessive force claims against

Defendants Richards and Jilla appeared unexhausted.

However, out of an abundance of caution, this Court allowed

Plaintiff an opportunity to file a statement reflecting on the

merits and exhaustion of his excessive force claims and offering

a justification for Plaintiff’s failure to prosecute. See Docket

Entry No. 117. The statement at bar followed. See Docket Entry

No. 118.

This statement essentially asserts that Plaintiff’s initial

pleading was executed by a paralegal who later abandoned

Plaintiff. See id. Without detailing the facts of his claims,

Plaintiff now: (a) alleges that the violation of his rights were

such that they offended the Constitution; and (b) moves for

amendment of his pleading. See id. He also asserts that he duly

exhausted his administrative remedies. See id.

While Plaintiff’s claims based on verbal harassment are

facially deficient and cannot be revived, this Court finds it in

the interests of justice to allow Plaintiff one final opportunity

to properly identify defendants Richards and Jilla and detail

Plaintiff’s facts in support of his excessive force claim against

these defendants. The Court stresses that Plaintiff, a

layperson, is not expected to produced a skilled legal document. 

Rather, Plaintiff’s amended complaint must be a clear and concise

narrative detailing what exactly was done by Richards and Jilla,

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the circumstances of their use of excessive force, the time, the

injuries Plaintiff suffered, etc. See In re Advanta Corp. Sec.

Litig., 180 F.3d 525, 534 (3d Cir. 1999) (Plaintiff’s allegations

must be factual, i.e., they must state “the who, what, when,

where, and how: the first paragraph of any newspaper story,” and

these allegations should be free of self-serving, bold

conclusions).

 IT IS, therefore, on this 5th day of January 2015,

ORDERED that Plaintiff’s application, Docket Entry No. 118, is

granted insofar that Plaintiff may file his amended complaint

detailing the facts of the events related to his excessive force

allegations with regard to defendants Richards and Jilla and

identifying those defendant in the fashion sufficient for the U.S.

Marshal to execute service. Such amended pleading shall be filed

within sixty days from the date of entry of this Memorandum Opinion

and Order; and it is further

ORDERED that the Clerk shall serve this Memorandum Opinion and

Order upon Plaintiff by regular U.S. mail.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

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