BARNES v. COUNTY OF MERCER

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ATIBABARNES, = iiti—sCS:

Plaintiff, Civ, No. 22-2376 (GC) (RLS)

v :

COUNTY OF MERCER, et al., : OPINION

Defendants. . □

CASTNER, District Judge

1. INTRODUCTION

Plaintiff, Atiba Barnes (“Plaintiff or “Barnes”), is proceeding pro se with a civil rights

Complaint filed pursuant 42 U.S.C. § 1983. (See ECF 1), Previously, the Court screened

Plaintiff's Complaint. (See ECF 15). The Court permitted Plaintiff's claims against Defendants

Correctional Officer Walter and Defendant Lieutenant Friel (“Friel”) (collectively the “Moving

Defendants”) to proceed. (See ECF 15 & 16). Plaintiffs claim against Defendant Walter for the

use of excessive force against Plaintiff as well as Plaintiff's claims against Defendant Lieutenant

Friel related to a strip search while Plaintiffwas detained at the Mercer County Correctional Center

(“MCCC”) in Lambertville, New Jersey proceeded past screening, !

Moving Defendants then filed an Answer to the Complaint. (See ECF 24). In their Answer,

Moving Defendants included fifteen affirmative defenses. (See id.), Presently pending before this

Court is Plaintiff's Motion to Strike most of Moving Defendants’ affirmative defenses, namely,

As the Court noted in its screening Opinion, it is unclear whether Plaintiff was a pretrial detainee

or a state prisoner at the time of the incidents giving rise to his claims against Moving Defendants.

(See ECF 15 at 4). That distinction though has no impact on this Opinion.

affirmative defenses 1-4, 6-13 and 15. (See ECF 26). Plaintiff also seeks to add the County of

Mercer as a Defendant to this action and strike Moving Defendants’ request for “legal expenses”

in their Answer. (See id. at 2). Moving Defendants oppose Plaintiff's motion to strike their

affirmative defenses. (See ECF 33). For the following reasons, Plaintiff's Motion to Strike is

DENIED.

IL. FACTUAL AND PROCEDURAL BACKGROUND

The Court previously discussed the factual background giving rise to Plaintiff's claims

against the Moving Defendants in its screening Opinion, (See ECF 15 at 2). Essentially, Plaintiff

sues Defendant Walter for the purported use of excessive force when he smacked Plaintiff's hand

which caused Plaintiff to suffer ligament damage to a finger. (See id). Plaintiff alleges he was

then forced to undergo a strip search by Defendant Friel because he had gotten into an altercation

with Defendant Walter. (See id. at 2, 8-9). Despite not refusing the strip search, Plaintiff alleges

Defendant Friel then utilized bear spray on his face and genitals. (See id. at 2,9). Accordingly,

this Court proceeded Plaintiffs Fourth and Eighth/Fourteenth Amendment claims against

Defendant Friel. Relevant to Plaintiff's current Motion, however, the Court dismissed Plaintiffs

claims against the County of Mercer without prejudice as Plaintiff had failed to plead a claim

against the County under Monell v. Dep't of Soe. Servs. Of City of New York, 436 U.S. 658, 694

(1978). (See ECF 15 at 12-13).

Moving Defendants then filed an Answer to the Complaint. (See ECF 24), Moving

Defendants deny all allegations of the Complaint. (See id. at 1). Additionally, they assert fifteen

affirmative defenses as follows:

1. Plaintiff has failed to state a claim upon which relief may be granted;

2, Plaintiffs Complaint should be dismissed for lack of subject matter jurisdiction;

3. Plaintiff has not been deprived of any rights under the United States Constitution or the

State of New Jersey;

4, No conduct by Moving Defendants was the proximate cause of Plaintiffs injury or

damages; .

5. Moving Defendants acted properly within the scope of their duties and responsibilities;

6. Moving Defendants are entitled to qualified immunity because their conduct towards

Plaintiff was objectively reasonable,

7. Moving Defendants did not know, nor were they reasonably expected to know, that their

actions taken towards Plaintiff were in violation of the United States Constitution or

common law rights such that Moving Defendants are immune from monetary damages,

8. Plaintiff's injuries and damages were caused by third parties over whom the Moving

Defendants had no control;

9. Plaintiff's claims are barred by the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:1-1,

et seq., or in the alternative, Plaintiff’s claims are subject to the limitations and defenses

established therein;

10. Plaintiff has failed to comply with the requirements of N.J. Stat. Ann. 2A:53-26 ef □□□□

which bars recovery against Moving Defendants,

11. Plaintiff has failed to exhaust administrative remedies;

12, Moving Defendants have not been served with process as required by the Federal Rules of

Civil Procedure;

* The Court presumes this is a typo by Defendants as there is no statutory section labeled N.J. Stat.

Ann. § 2A:53-26, Instead, this Court presumes that Defendants meant to refer to New Jersey’s

statutory law on negligence which begins at N.J. Stat. Ann, § 2A:54A-~-1 and includes a section 26

which defines a “licensed person” under New Jersey’s negligence law. See id. § 2A:54A-26.

13. Plaintiffs medical treatment, if any, was proper and based on the accepted standard of

medical care and constitutional grounds;

14. Plaintiff failed to name all indispensable and necessary parties; and

15. Plaintiff's action is frivolous, harassing and/or without merit.

(See ECF 24 at 2-3). In addition to these affirmative defenses, Moving Defendants also request

costs for suit and reasonable attorney fees. (See id. at 1).

Shortly after Defendants filed their Answer, Plaintiff filed the instant Motion that is before

the Court, (See ECF 26). Plaintiff's Motion makes several requests. First, Plaintiff requests that

Defendants’ affirmative defenses 1-4, 6-13 and 15 be stricken because “no such affirmative

defenses exist in Federal Practice.” (See ECF 26 at 1). Next, Plaintiff seeks to add the County of

Mercer as a Defendant, (See id. at 2). Finally, Plaintiff asserts that Defendants claim for “legal

expenses” is improperly in its Answer. (See id.). Defendants oppose Plaintiff's pending Motion.

(See ECF at 33).

Il DISCUSSION

As indicated above, Plaintiff raises three distinct arguments in his Motion; namely: (1)

striking most of Defendants’ affirmative defenses; (2) adding the County of Mercer as a

Defendant; and (3) arguing that Defendants’ request for attorneys fees in its Answer is improper.

Each of these issues are considered in turn.

A. Motion to Strike Affirmative Defenses

Under Federal Rule of Civil Procedure 12(f), a court may strike from a pleading such as an

answer “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f), Motions to strike affirmative defenses are discretionary and are highly

disfavored. See F.T.C. v, Hope New Modifications, LLC, No, 09-1204, 2011 WL 883202, at *1

(D.N.J. Mar. 10, 2011) (citations omitted). A motion to strike an affirmative defense will typically

only be granted “‘when a defense is legally insufficient under any set of facts which may be

inferred from the allegations of the pleading.”” F.D.LC. v. Modular Homes, Inc., 859 F. Supp.

117, 120 (D.N.J. 1994) (quoting Glenside West Corp. v. Exxon Corp., 761 F. Supp. 1100, 1115

(D.N.J. 1991)). Furthermore, “even where the challenged material is redundant, immaterial,

impertinent, or scandalous, a motion to strike should not be granted unless the presence of the

surplusage will prejudice the adverse party.” Hope Now, 2011 WL 883202, at *1 (quoting Symbol

Techs., Inc. v. Aruba Networks, Inc., 609 F.Supp.2d 353, 359 (D, Del. 2009)) (quotations omitted).

Plaintiff's Motion does not make any argument regarding the prejudice he will suffer from

allowing the affirmative defenses Defendants have included in their Answer. Accordingly, this

Court will utilize its discretion and deny this portion of Plaintiff's Motion. Accord Cont’l Cas.

Co. v. Crum Forster Specialty Ins. Co., No. 20-3843, 2021 WL 268175, at *3 (D.N.J. Jan. 27,

2021) (denying motion to strike affirmative defenses where plaintiff failed to show how he was

prejudiced by the presence of these affirmative defenses); Wells Fargo Bank, N.A. v. Bertea, No.

13-7232, 2014 WL 1883702, at *3 (D.N.J. May 12, 2014) (denying plaintiffs request to strike

affirmative defenses where plaintiff made no attempt to show how it would be prejudiced by

presence of affirmative defenses).

B. Request to Add County of Mercer as a Defendant

Next, Plaintiff requests that the Court add the County of Mercer as a Defendant, (See ECF

26 at 2). As noted in supra Part II, the Court previously dismissed Plaintiffs claims against the

County of Mercer in its screening Opinion because Plaintiff had failed to allege a Monell claim

against the County.

Plaintiff's request to add the County of Mercer as a Defendant in the pending Motion is

procedurally improper. Indeed, the Court previously provided its reasoning for dismissing

Plaintiff's claims against the County of Mercer in the screening Opinion, (See ECF 15 at 12-13).

Plaintiff fails to provide any basis in his pending Motion to warrant the Court reconsidering that

analysis and decision.

Furthermore, such piecemeal attempts by Plaintiff seeking to amend his Complaint are

improper. See Lewis v. Sessions, No. 17-5475, 2017 WL 7313822, at *2 (D.N.J. Nov, 3, 2017)

(“Neither Fed, R. Civ. P. 8, which governs pleadings, nor Fed. R. Civ. P. 15, which governs

amended and supplemental pleadings, permits [a plaintiff] to submit... addenda to his Complaint

in... piecemeal fashion”), Instead, Plaintiff needs to submit a motion to amend his complaint

that includes a copy of a proposed all-inclusive amended complaint that raises all claims against

all Defendants he seeks to sue.

C. Challenge to Defendants’ Request for Attorneys’ Fees in Answer

Finally, Plaintiff asserts that Defendants’ claim for possible “legal expenses” in their

Answer lacks merit. “District courts are entitled to award reasonable attorneys’ fees to prevailing

defendants in § 1983 matters ‘upon a finding that the plaintiff's action was frivolous, unreasonable,

or without foundation,” Arneault y. O'Toole, 718 F. App'x 148, 152 Gd Cir. 2017) (quoting Fox

v. Vice, 563 U.S. 826, 833 (2011) (quotation omitted)). Given Defendants may be entitled to the

award of attorneys’ fees at the close of this case if they meet the above stated standard, the Court

does not find it appropriate to strike this portion of Defendants’ Answer at this time. Cf Fiorentino

vy. Cabot Oil & Gas Corp. 750 F. Supp. 2d 506, 515 (M.D. Pa. 2010) (declining to strike

allegations with respect to attorney fees because “at such an early stage in the proceedings is

impossible to determine that there are no circumstances where an award of fees or litigation costs

would be appropriate”).

IV. CONCLUSION

For the foregoing reasons, Plaintiffs Motion to Strike (ECF 26) is DENIED. An

appropriate Order will be entered.

DATED: November “T, 2023 Gy

GEORGETTE CASTNER

ited States District Judge