                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2007

Aruanno v. Cape May Cty Jail
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1395




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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                    No. 02-1395
                                    __________

                               JOSEPH ARUANNO,
                                            Appellant
                                       v.

                          CAPE MAY COUNTY JAIL;
                         CAPE MAY SHERIFFS OFFICE;
                     C. BROWN, OFFICER; COTA, OFFICER
                                __________

                   On Appeal from the United States District Court
                            for the District OF New Jersey
                             (D.C. Civil No. 99-cv-02869)
                   District Judge: Honorable Stephen M. Orlofsky
                     Magistrate Judge: Honorable Joel B. Rosen
                                     __________

                             Argued on January 9, 2007

                Before: SLOVITER and RENDELL , Circuit Judges,
                           and RUFE,* District Judge.

                                (Filed March 8, 2007)
                                     __________

                            OPINION OF THE COURT
                                  __________

__________________

   * Honorable Cynthia M. Rufe, United States District Judge for the Eastern District
     of Pennsylvania, sitting by designation.
Louis K. Fisher [ARGUED]
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001

Counsel for Appellant,
Joseph Aruanno


Susanna J. Morris    [ARGUED]
Budd, Larner, Gross, Rosenbaum,
   Greenberg & Sade
1939 Route 70 East, Suite 100
Cherry Hill, NJ 08003

Counsel for Appellees,
Cape May County Jail;
Cape May Sheriffs Office;
C. Brown, Officer; Cota, Officer




                               OPINION OF THE COURT




RENDELL, Circuit Judge.

       Joseph Aruanno appeals from the District Court’s dismissal of his lawsuit filed

under 42 U.S.C. § 1983 for failure to state a claim pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. Appellant’s claim asserts Eighth Amendment

violations by New Jersey corrections officers at the Cape May County Jail, including

                                             2
numerous physical assaults by the officers, denial of proper medical treatment, and the

placement of Aruanno in small cells with highly dangerous and diseased inmates, several

of whom attacked Aruanno and one of whom committed suicide in the cell they shared.

       Aruanno also claims that the Magistrate Judge in charge of non-dispositive

motions in his case abused his discretion in refusing to appoint counsel on Aruanno’s

behalf in view of the fact that Aruanno suffers from mental problems that impair his

ability to prosecute his case.

       For the reasons set forth below, we will reverse the dismissal and the denial of the

request for the appointment of counsel and remand to the District Court for further

proceedings in accordance with this opinion.

       FACTUAL AND PROCEDURAL HISTORY

       Aruanno was convicted of one count of sexual assault in 1998 and was sentenced

to ten years’ imprisonment. He was incarcerated primarily at Cape May County Jail,

beginning in December 1996 (after he was arrested and charged) and continuing until

March 11, 1999. In 1997 and 1998, Aruanno was involved in two altercations with

fellow inmates, one of which led to his receiving three stitches.

       Aruanno filed a lawsuit in the Superior Court of New Jersey, Law Division,

Special Civil Part, Cape May County, against defendants Cape May County Jail, Cape

May County Sheriff’s Department, and the County of Cape May, alleging that he had told

the jail staff he was being threatened and that their willful disregard of his safety put him



                                              3
in grave danger. He alleged that the staff’s negligence and carelessness led to physical

and mental injuries on his part. The defendants answered the complaint and filed a

motion for summary judgment, which was granted in January 1999 based on defendants’

absolute immunity.

       In June 1999, Aruanno filed a complaint in the United States District Court for the

District of New Jersey. He brought suit under 42 U.S.C. § 1983, alleging, inter alia, that

corrections officers had violated his constitutional rights by assaulting him and knowingly

placing him with dangerous, mentally unstable inmates. He also alleged that he was

denied proper medical treatment when he arrived at prison with fractured ribs and was

forced to sleep on the floor in that condition. Also, “[t]he average wait to see the doctor

was one week and the answer to everything was an aspirin.” App. 37. The named

defendants in the suit were Cape May County Jail, Cape May County Sheriff’s Office,

Officer C. Brown, and Officer Cota.

       After he filed his suit in the District Court, Aruanno filed several motions for

appointment of counsel. These motions came before a Magistrate Judge assigned to

manage all non-dispositive matters and matters relating to discovery. The bases for

Aruanno’s motions were that he had not been able to obtain an attorney, that he had no

litigation experience, and that he suffered from severe psychological problems.

       Aruanno submitted medical reports from 1997 and 1999, the latter of which set

forth the clinical psychologist’s conclusion that Aruanno had “multiple psychological



                                             4
problems,” App. 150, and that it was “clear that Mr. Aruanno is presenting with severe

psychological pathology, related both to depression and paranoid delusional material.”

App. 152. Defendants presented excerpts from Aruanno’s correctional file which did not

indicate that Aruanno had been harmed during his time at Cape May any more than

requiring stitches on one occasion after a fight with another inmate. Aruanno was never

permitted to see his file, and the Defendants provided no affidavit to support their

attorney’s statement that they denied that Aruanno was beaten by the staff.

       In a letter opinion and order entered on April 25, 2000, the Magistrate Judge

denied the request for counsel, concluding that Aruanno’s claims did not appear to have

“substantial merit” and that Aruanno was capable of managing his lawsuit. The

Magistrate Judge mentioned the 1997 medical report but not the more recent 1999 report.

       After issuing his decision, the Magistrate Judge appeared to offer conflicting and

contradictory instructions to Aruanno. Aruanno wrote to him objecting to the order

denying appointed counsel, including his objection to the omission of mention of the

more recent 1999 medical report. The Magistrate Judge replied that “[i]f you feel that my

decision was in error, you may file a motion for reargument under Local Civil Rule 7.1.”

App. 171.

       Aruanno wrote back, requesting that his prior submission be treated as such a

motion. This request was docketed on May 8, 2000, but the Magistrate Judge did not

respond. Three months later Aruanno wrote to the Magistrate Judge about his motion, to



                                             5
which the Magistrate Judge responded: “you asked me about the status of a motion for

reargument and a request for a stay. The court presently has no motions pending in your

case.” App. 179. Aruanno wrote back once again, reminding the Magistrate Judge about

his objections to the order denying appointment of counsel, and asking “What should I do

now?” App. 180. The Magistrate Judge did not respond.

      The County Defendants filed a motion to dismiss the suit pursuant to Rule 12(b)(6)

on December 20, 1999. In response, Aruanno filed a motion for appointment of counsel

which included arguments why he believed the motion to dismiss should not be granted.

      On December 18, 2000, the District Court granted the motion to dismiss, without

prejudice and without explanation. However, the order stated that there were indications

that Aruanno had been moved within the prison system during the pendency of the

motion, and that if he could demonstrate he had not received the motion to dismiss the

matter could be reopened.

      Aruanno filed a motion to reopen, stating that he did not know if he had received

the motion because he had been in “isolation” for much of the time: “to be honest with

you I do not have a clue as to what is going on. I have been moved to a psychiatric unit

and have recently been on suicide watch. I am on medication and sleep all the time.”

App. 182.

      On January 10, 2002, the District Court issued its Opinion and Order, finding that

Aruanno had in fact received the motion and dismissing Aruanno’s complaint with



                                            6
prejudice based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. Aruanno filed

a timely notice of appeal on February 1, 2002.

       DISCUSSION

       A.     12(b)(6) Dismissal

       The order granting the Rule 12(b)(6) motion to dismiss is reviewed de novo. In re

Adams Golf, Inc. Secs. Litig., 381 F.3d 267, 273 (3d Cir. 2004) (“This Court reviews Rule

12(b)(6) dismissals de novo, accepting all well-pleaded allegations as true and drawing all

reasonable inferences in favor of plaintiffs.”). The denials of the motions for

appointment of counsel are reviewed for abuse of discretion. Tabron v. Grace, 6 F.3d

147 (3d Cir. 1993).

       We conclude that the decisions by the Magistrate Judge and the District Court

were both flawed. With respect to the District Court’s 12(b)(6) dismissal, the dismissal

lacked any reasoning, and the immediate reference to the fact that no response was

received from Aruanno indicates that the District Court may have believed that the

absence of a response to a 12(b)(6) motion meant that the motion was conceded and

therefore should be granted. Our precedent states clearly that this is not the case. See

Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (“The fact is that if a motion

to dismiss is granted solely because it has not been opposed, the case is simply not being

dismissed because the complaint has failed to state a claim upon which relief may be

granted. Rather, it is dismissed as a sanction for failure to comply with the local court



                                              7
rule.”).

       We cautioned in Stackhouse that we were not “suggest[ing] that the district court

may never rely on the local rule to treat a motion to dismiss as unopposed and subject to a

dismissal without a merits analysis. There may be some cases where the failure of a party

to oppose a motion will indicate that the motion is in fact not opposed, particularly if the

party is represented by an attorney and in that situation the rule may be appropriately

invoked. Nor do we suggest that if a party fails to comply with the rule after a specific

direction to comply from the court, the rule cannot be invoked.” Id.

       In this case, no local rule was mentioned, Aruanno was not represented by an

attorney, and he was not specifically directed to comply with a local rule. When Aruanno

replied to the District Court that he was not sure if he had received the motion to dismiss

in light of circumstances relating to his medical condition, he did not concede the motion

or indicate it was unopposed. Given this, the District Court should have proceeded to

conduct a merits analysis. Instead, it dismissed the complaint with prejudice. Thus, the

District Court appears not to have employed the proper 12(b)(6) inquiry.

       Moreover, even if the District Court’s order resulted from an examination of the

merits, we would have little difficulty finding we must reverse the District Court.

Aruanno’s § 1983 suit challenged the actions taken by Cape May corrections officials and

sets forth a claim under the Eighth Amendment of “unnecessary and wanton infliction of

pain,” Ingraham, v. Wright, 430 U.S. 650, 670 (1977), via his allegations of excessive



                                              8
force, inhumane integration with dangerous prisoners, and the absence of proper medical

care.

        The standard of review for Rule 12(b)(6) orders is a generous one, and the

standard is even more forgiving when a pro se plaintiff is involved. Dluhos v. Strasberg,

321 F.3d 365 (3d Cir. 2003). Aruanno’s allegations state a claim for which relief can be

granted, “accepting all well-pleaded allegations as true and drawing all reasonable

inferences in favor of plaintiffs.” In re Adams Golf, Inc. Secs. Litig., 381 F.3d 267, 273

(3d Cir. 2004).1

        B.    Denial of Appointed Counsel

        We review the denial of appointed counsel for abuse of discretion. Tabron v.

Grace, 6 F.3d 147 (3d Cir. 1993) (“[B]ecause 28 U.S.C. § 1915(d) gives the district




  1
    Defendants raise the argument that dismissal was appropriate given the effect of
Aruanno’s state-court proceedings, which were terminated by summary judgment before
his federal claim was filed. Arguing under New Jersey’s “entire controversy doctrine,” a
relative of res judicata, Defendants assert that the fact that the state proceedings involved
the same allegations means that the § 1983 claim is barred as a 12(b)(6) matter. This is
incorrect. See Rycoline Prods. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997)
(“We held in Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978), that if
a statute of limitations ‘bar is not apparent on the face of the complaint, then it may not
afford the basis for a dismissal of the complaint under Rule 12(b)(6).’ This holding
applies not only to a statute of limitations defense, but also to any affirmative defense
raised pursuant to Rule 8(c), including res judicata and the Entire Controversy
Doctrine.”). Thus, the affirmative defense put forward by Defendants cannot be the basis
for a 12(b)(6) dismissal, because it was not evident from the face of the complaint. Nor is
it at all clear that, even if this doctrine applied, it would be applicable in Aruanno’s case,
because the Defendants concede that Defendant Officer Cota was not a party to the state-
court action. Respondent’s Br. 19 n.2.

                                              9
courts broad discretion to appoint counsel, the courts of appeals should reverse that

exercise of discretion only where the party seeking appointment has shown that the

district court’s decision not to appoint counsel was clearly an abuse of discretion . . . .”).

       The Magistrate Judge correctly cited Tabron v. Grace, which sets forth the factors

to be taken into consideration in determining whether the appointment of counsel is

warranted. These factors include whether the suit has “arguable merit;” the plaintiff’s

ability to present his case; and the plaintiff’s “education, literacy, prior work experience,

and prior litigation experience.” Tabron, 6 F.3d at 156. The “court must also consider

the difficulty of the particular legal issues,” assess “the degree to which factual

investigation will be required and the ability of the indigent plaintiff to pursue such

investigation” and “the extent to which prisoners and others suffering confinement may

face problems in pursuing their claims.” Id. Finally, “where the claims are likely to

require extensive discovery and compliance with complex discovery rules, appointment

of counsel may be warranted,” and “when a case is likely to turn on credibility

determinations, appointment of counsel may be justified.” Id.

       The Magistrate Judge misapplied these factors to the facts before him. In

weighing each of the factors, the Magistrate Judge erred by giving insufficient

consideration to the uncontroverted medical reports describing Aruanno’s condition and




                                              10
to the overall difficulty Aruanno faced in bringing his suit.2 The Magistrate Judge

neglected to mention the most recent medical report describing Aruanno’s condition,

instead referring exclusively to an earlier report analyzing Aruanno’s competency to stand

trial. The Magistrate Judge then compounded that error by drawing erroneous

conclusions from the competency report. “[Aruanno] was found to be aware of the nature

and consequences of the charges against him. It was also found that [Aruanno] could

adequately participate in the defense of his criminal case. This diagnosis confirms that

the plaintiff is capable of defending his pending civil rights case.” App. 21. That

framing of the Tabron test flatly distorted it; a defendant’s competency to stand trial does

not equate to his being able to manage a civil suit. Moreover, the Magistrate Judge failed

to consider that this type of suit, a § 1983 suit against prison officials, would include

credibility and discovery issues and would be appropriate for the appointment of counsel

under our caselaw.

       We have said that “[i]f it appears that an indigent plaintiff with a claim of arguable

merit is incapable of presenting his or her case, serious consideration should be given to

appointing counsel, and if such a plaintiff’s claim is truly substantial, counsel should

ordinarily be appointed.” Tabron, 6 F.3d at 156 (citation omitted). In this case,




  2
   There is a question as to whether the Magistrate Judge misapplied the “arguable merit”
factor insofar as he deemed the claims to lack “substantial merit.” App. 15. Even if this
was merely a slip of the pen, the factor was misapplied because the claims do possess
arguable merit.

                                              11
Aruanno’s claim has arguable merit and his medical condition rendered him incapable of

prosecuting his case. The denial of the request was tainted by an unduly restrictive

application of Tabron to the facts at hand, and we conclude that the denial of the request

for appointment of counsel was an abuse of discretion. Accordingly we will reverse the

order and require that counsel be appointed.

       CONCLUSION

       In light of the foregoing, the Order of the District Court entered on January 10,

2002, denying the motion to reopen and dismissing the action with prejudice will be

REVERSED. The case will be REMANDED to the District Court with direction to

appoint counsel for appellant and for further proceedings consistent with the Opinion of

this Court.

__________________




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