# BARNES v. COUNTY OF MERCER

> District Court, D. New Jersey · November 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10277870

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** November 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10277870

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

NOT FOR PUBLICATION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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10277870. Public record. Not legal advice.