                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2008

Tate v. Morris Cty Pros Ofc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2430




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"Tate v. Morris Cty Pros Ofc" (2008). 2008 Decisions. Paper 867.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/867


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                                                 NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                              NO. 07-2430
                              ___________

                            JOHN W. TATE,
                                                Appellant

                                   v.

 MORRIS COUNTY PROSECUTORS OFFICE; ESQ. MARGARET CALDERWOOD;
DET. STEPHEN WILSON; MORRIS COUNTY DYFS; MORRIS COUNTY PROSECUTORS
    OFFICE INTERNAL AFFAIRS; JOHN DOE AND JANE ROE; A.B.C., 1,2,3,
UNKNOWN, ET ALS; ESQ. MELANIE SMITH, M.C.P.O.; DENISE RICHARDSON-BOWSER;
      STATE OF NEW JERSEY, OFFICE OF THE PUBLIC DEFENDER; ESQ.
ELIZABETH SMITH; ESQ. PETER C. HARVEY, STATE OF NEW JERSEY, OFFICE
   OF THE ATTORNEY GENERAL; ESQ. RONALD K. CHEN, OFFICE OF THE
 PUBLIC ADVOCATE, STATE OF NEW JERSEY; CAPRICE SHAVES, STATE OF
 NEW JERSEY, DEPARTMENT OF CORRECTIONS, INTERNAL AFFAIRS; ESQ.
  DELORES MANN, MORRIS COUNTY PUBLIC DEFENDERS OFFICE, DEPUTY
    PUBLIC DEFENDER; SUSAN VAN AMBURG, MORRIS COUNTY PUBLIC
DEFENDERS OFFICE, PUBLIC DEFENDER; LAURA EURE, DIVISION OF YOUTH
   AND FAMILY SERVICES, MORRIS COUNTY DISTRICT; GRACE LUNDRY,
 DIVISION OF YOUTH AND FAMILY SERVICES, MORRIS COUNTY DISTRICT
   OFFICE SPECIALIST; ARLENE COHN, LAW GUARDIAN, OFFICE OF THE
       PUBLIC DEFENDER; ESQ. ESTER BAKYONI, DEPUTY ATTORNEY
GENERAL; JACKIE MATHES, DIVISION OF YOUTH AND FAMILY SERVICES, DISTRICT
  OFFICE MANAGER; JOANNE GRAVES, DIVISION OF YOUTH AND FAMILY
     SERVICES, INSTITUTIONAL ABUSE UNIT; MELANIE GROSS, MORRIS
COUNTY PROSECUTORS OFFICE; THERAPIST MARK GREAVES, SMITH QUEST
  ACADEMY; PSYD. CINDY BROWNING, CLINICAL THERAPIST, LGSW, CAC;
      ESQ. PATRICIA PARKER; LINDA RYAN, F.S.S. N.P.D.O. DIVISION OF
YOUTH AND FAMILY SERVICES; SGT. ROBERT MAGNUSEN; MORRIS COUNTY
    PROSECUTORS OFFICE; I.A.I.V. LISA FINNEGAN, DIVISION OF YOUTH
   AND FAMILY SERVICES; MORRIS COUNTY CORRECTIONAL FACILITY,
        ADMINISTRATIVE STAFF OFFICERS, CORRECTIONS OFFICERS
                  ____________________________________
                     On Appeal From the United States District Court
                            For the District of New Jersey
                             (D.C. Civ. No. 06-cv-05024)

                      District Judge: Honorable Susan D. Wigenton
                       ___________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 19, 2008
                Before: RENDELL, JORDAN and ROTH, Circuit Judges


                                    (Filed: July 9, 2008)
                                         _________

                                         OPINION
                                        _________

PER CURIAM

       John W. Tate, a New Jersey state prisoner proceeding pro se, appeals from the

District Court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

We will affirm in part, vacate in part, and remand for further proceedings.

                                             I.

       Tate is detained pending trial on state criminal charges. He instituted this action in

October 2006 by filing a form civil rights complaint. In general, the complaint alleges

certain misconduct by the Morris County Prosecutor’s Office in connection with Tate’s

pending charges. The complaint, however, appears to be missing one or more pages and

does not contain a specific prayer for relief. Tate’s cover letter requested an extension of

time to “complete” his filing. Over the next six months, before any action by any



                                             2
defendant or the District Court, Tate filed at least two other versions of a complaint.

Those versions too appear incomplete. He also filed numerous letters, affidavits and

other documents promising additional motions and pleadings that he appears never to

have filed. Many of these documents express confusion about proper filing procedures.

       The District Court granted Tate leave to proceed in forma pauperis, then dismissed

this action under 28 U.S.C. § 1915(e)(2)(B) after concluding that he had failed to state a

claim upon which relief could be granted. The District Court construed Tate’s filings to

assert three claims against the Prosecutor’s Office and its personnel under 42 U.S.C. §

1983: (1) interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966); (2)

malicious prosecution; and (3) violation of his right to a speedy trial. The District Court

did not discuss the status of Tate’s filings or the possibility of amendment, and did not

grant Tate leave to file an amended complaint. Tate appeals.1

                                             II.

       The disposition of this appeal turns on two well-established principles. First, as

the District Court recognized, complaints filed by pro se litigants must be liberally

construed. See Erickson v. Pardus, – U.S. –, 127 S. Ct. 2197, 2200 (2007). Second,

district courts in this circuit must grant leave to amend before dismissing a pro se civil




 1
  We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s dismissal of the complaint, and review its decision not to grant leave to
amend for abuse of discretion. See Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d
Cir. 2007).

                                              3
rights complaint, even if the plaintiff does not request it, unless amendment would be

futile or leave to amend is not warranted for some other reason. See Phillips v. County of

Allegheny, – F.3d –, 2008 WL 305025, at *8-9 (3d Cir. Feb. 5, 2008); Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

       Here, the District Court properly identified the three claims described above and

correctly explained why they fail as a matter of law. We refer the parties to the District

Court’s thorough opinion, which we have no need to summarize here. For the reasons

explained by the District Court, we agree that those claims fail as a matter of law, and

conclude that any amendment of those claims would be futile. Thus, we will affirm the

District Court’s judgment as to those three specific claims.

       Our review of Tate’s filings, however, suggests that he has attempted to assert at

least two other claims – a claim that prison personnel have denied him access to certain

legal materials in violation of the First Amendment, and a claim that prison personnel

have been deliberately indifferent to his medical needs or have exposed him to a risk of

physical injury in violation of the Fourteenth Amendment.2 In one letter, for example, he

complains that he has been unable to complete his filing because prison personnel are

withholding certain legal materials. (Dist. Ct. Docket No. 8.) In other documents, he

refers to “deliberate indifference,” and has named as defendants various physicians and


 2
  Tate is a pre-trial detainee, so this claim would lie under the Fourteenth Amendment,
but Eighth Amendment cruel and unusual punishment standards apply. See Fuentes v.
Wagner, 206 F.3d 335, 344 (3d Cir. 2000).

                                             4
prison personnel, for reasons unapparent from his extant filings. He also filed what

appears to be a table of contents for a proposed complaint, which includes a section

captioned “deliberate indifference.” (Dist. Ct. Docket No. 14.)

       We do not believe that Tate’s existing allegations actually state a § 1983 claim for

the violation of his First or Fourteenth Amendment rights. Broadly construed, however,

his filings suggest that he may have been attempting to assert such claims, and there is no

indication that amendment of these apparent claims inevitably would be futile. Thus,

under the circumstances, the District Court should have given Tate leave to file an

amended complaint before dismissing this action altogether. Accordingly, we will vacate

the District Court’s judgment only to that extent. On remand, the District Court is

directed to afford Tate an opportunity to file a single concise amended complaint, within

a set period of time, asserting whatever claims he believes he has regarding his access to

legal materials and his physical treatment while incarcerated. We emphasize that Tate is

not to reassert the claims that the District Court has already addressed, and is not to

reallege the conduct allegedly giving rise to those claims. We will affirm the judgment of

the District Court in all other respects, as discussed above.

       Appellees’ motion to strike portions of the caption of Tate’s pro se appellate brief

is granted, and the names of Joseph D’Onofrio, Margaret Rodriguez, Sgt. Charles Brady

and Sgt. Chris Then are hereby stricken from the caption of the brief.




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