                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-10-2006

Harrod v. Cox
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4235




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Recommended Citation
"Harrod v. Cox" (2006). 2006 Decisions. Paper 1601.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1601


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DPS-86                                                      NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 05-4235
                                 ________________

                            DARRYL K. HARROD, JR.,
                                        Appellant


                                           v.

         OFFICER J. COX; OFFICER E. BROGAN; WARDEN KEITH OLSON;
                         UNITED STATES OF AMERICA
                     ____________________________________

                   On Appeal From the United States District Court
                            For the District of New Jersey
                             (D.C. Civ. No. 01-cv-02577)
                     District Judge: Honorable Robert B. Kugler
                   _______________________________________


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  December 30, 2005

    Before: ROTH, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES

                             (Filed: February 10, 2006 )


                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

     Darryl K. Harrod, Jr., an inmate incarcerated at United States Penitentiary-
Allenwood in White Deer, Pennsylvania, appeals following the entry of judgment in favor

of the United States of America on his Federal Tort Claims Act claim. For the reasons

stated below, we will affirm the judgment of the District Court.

       Harrod filed the underlying lawsuit against Lieutenant Jeffrey Cox pursuant to

Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Harrod alleged that he was assaulted by Lieutenant Cox in violation of his constitutional

right to be free from cruel and unusual punishment. The District Court liberally

construed his Amended Complaint to state a claim both against Lieutenant Cox under

Bivens, and against the United States of America under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2672. The Court therefore ordered that the United States be

added as a defendant and that the United States Marshal serve summons and copies of the

Amended Complaint on both defendants. On September 5, 2003, the District Court

granted partial summary judgment in favor of Cox, dismissing all claims against him due

to Harrod’s failure to exhaust his administrative remedies prior to filing suit. Harrod’s

claim against the United States was permitted to proceed to trial.

       The District Court held a bench trial on Harrod’s FTCA claim on September 1,

2005. Following each side’s presentation and examination of witnesses, the District

Court entered a judgment of no cause of action in favor of the United States. Harrod

timely appealed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because this

appeal presents no “substantial question,” we will summarily affirm the District Court’s

decision. 3d Cir. LAR 27.4 & I.O.P. 10.6.
       Harrod has submitted a motion for summary reversal in which he identifies the

issues for which he seeks review. According to his motion, the following issues provide

bases for reversal: (1) that the testimony of Registered Nurse Shirley Nati, who examined

Harrod after the alleged incident, was coerced by the U.S. Attorney’s office; (2) that the

District Court erred in reinstating Harrod’s Bivens claim against Cox after having entered

default against him, and then dismissing that claim for failure to exhaust; (3) that the

District Court erred in finding Lieutenant Cox to be a credible witness; and (4) that the

District Court erred in denying Harrod’s motion for recusal. Because none of these issues

has any legal merit, we will deny the motion for summary reversal and summarily affirm

the decision of the District Court.

       Harrod first contends that Nurse Nati was coerced by the U.S. Attorney’s office to

testify that Harrod had a cyst on his head following the alleged incident, rather than a

bruise from being assaulted by Lieutenant Cox. Harrod offers no proof in support of this

allegation other than the discrepancy between the written medical report and Nurse Nati’s

testimony at trial. There could have been any number of explanations for this

discrepancy, which Harrod would have had ample opportunity to explore during the

course of Nurse Nati’s testimony. Harrod does not point to any testimony from the trial

that would cast doubt on Nurse Nati’s credibility or support his contention that she was

coerced into giving false testimony. As Harrod fails to offer any basis for his claim, we

cannot consider it to be meritorious.

       Next, Harrod argues that the District Court erred in reinstating his Bivens claim

against Cox after having entered default against him, and then dismissing that claim based
on Harrod’s failure to exhaust his administrative remedies prior to initiating this lawsuit.

Harrod was granted leave to file an Amended Complaint on October 7, 2002. Because he

had also been granted leave to proceed in forma pauperis, the U.S. Marshals assumed

responsibility for service of the Amended Complaint. Lieutenant Cox executed and

returned a waiver of service form on October 25, 2002, but failed to file an Answer until

February 23, 2003, without ever having requested or received an extension of time in

which to do so. In the interim, Harrod filed a request for a default judgment, and default

was entered by the Clerk of Court on January 9, 2003. Following Cox’s filing of an

Answer, Harrod filed a motion to revisit his prior motion for a default judgment. On

September 5, 2003, the District Court vacated the Clerk’s entry of default against

Lieutenant Cox, holding that, because Harrod had not demonstrated that he had exhausted

his claim administratively prior to filing his section 1983 action, he had failed to

“establish[] a claim or right to relief by evidence satisfactory to the court” as required for

entry of default against the United States or an officer or agency thereof. See Fed. R. Civ.

P. 55(e). Because the District Court did not err in vacating the Clerk’s entry of default

against Cox, this claim too lacks legal merit.

       Next, Harrod contends that the District Court erred in finding Lieutenant Cox to be

a credible witness, in light of the number of complaints filed against Cox for use of

excessive force against other inmates. It is well within the discretion of the District Court

as the trier of fact to assess the credibility of witnesses and to accept or reject their

testimony accordingly. While Lieutenant Cox’s history was certainly a relevant issue to

be explored at trial, it by no means compelled a finding that his testimony was not
credible. This argument too is without legal merit.

       Finally, Harrod maintains that the District Court erred in denying his motion for

recusal. Harrod based this motion on the failure of the Court to sanction the government

for what Harrod characterized as intentional and unprofessional attempts to delay the

proceeding and the commission of unspecified fraud upon the court. Harrod relies in part

on the fact that the Court granted defendant leave to take the deposition of one of his

proposed witnesses by written interrogatory, but defendant never did so. According to

Harrod, defendant therefore violated a court order and should have been sanctioned by the

Court. Harrod also argues that the Court’s decision to vacate the entry of default against

Cox demonstrates its bias in favor of the government. A federal judge is required to

recuse himself for personal bias or prejudice, or where his impartiality may reasonably be

questioned. See 28 U.S.C. §§ 144 & 455. As there was no basis for recusal under these

statutes in the instant case, the District Court properly denied Harrod’s motion.

       Accordingly, we will summarily affirm the decision of the District Court. 3d Cir.

LAR 27.4 & I.O.P. 10.6. Appellant’s motion for summary reversal is denied.
