United States District Court, M.D. Pennsylvania
SCOTT J. NJOS, Plaintiff
UNITED STATES OF AMERICA, Defendant
D. Mariani, United States District Judge
Scott J. Njos, an inmate currently confined at the United
States Penitentiary at Florence, Colorado, filed this civil
action pursuant to the Federal Tort Claims Act, 28 U.S.C.
§§ 1346 and 2671-2680. At the relevant time, Njos
was an inmate at the United States Penitentiary at Lewisburg,
Pennsylvania. Named as Defendant is the United States. Njos
challenges the follow-up care he received after undergoing a
urinary procedure. The Court will address two (2) motions
that are currently pending on the docket.
motion to dismiss the complaint was denied by the Court on
March 10, 2016, and Defendant subsequently filed an answer.
(Docs. 27, 28 and 41.) A scheduling order directed that all
discovery be completed by the parties and any dispositive
motions be filed by July 15, 2016. (Doc. 29.) The discovery
deadline was later extended. On February 1, 2017, in response
to Njos' motion to enlarge the discovery deadline, he was
given thirty (30) days to demonstrate how he could comply
with Federal Rule of Civil Procedure 31 with respect to his
request to submit a deposition by written questions. If Njos
failed to make such a showing, he would be afforded sixty
(60) days to serve interrogatories on Defendant. (Doc. 79.)
In addition, the Court granted in part, and denied in part, a
motion to compel discovery that had been filed by Njos. The
motion was granted in that discovery was enlarged for a
period of sixty (60) days for the purpose of allowing Njos to
properly serve his Request for the Production of Documents on
Defendant, and for Defendant to respond thereto, (id) Njos
was advised that he could not change or supplement his
previous discovery requests in any way. The motion was denied
in all other respects. On February 8, 2017, the above matter
was stayed, at the request of Njos, for a period of sixty
(60) days. (Doc. 80.) As such, the matter is stayed until
April 8, 2017.
the imposition of the stay, Njos has filed a motion to
rescind the Authorization he signed in this case (Doc. 81).
He has also filed a motion seeking to enlarge the discovery
period (Doc. 83). In addition, he has filed what appears to
be a response to objections Defendant has raised to Njos'
earlier discovery requests. For the reasons that follow, the
motion to rescind will be denied, and any request for an
enlargement of the discovery period will be denied without
prejudice at this time in light of the stay in place.
Moreover, any challenge to discovery responses previously
provided by Defendant must be raised in a properly supported
motion to compel pursuant to Fed.R.Civ.P. 37. In light of the
stay that remains in place, Njos can file a motion to compel
with a supporting brief and attach the challenged discovery
responses once the stay in this matter has been lifted, if he
Motion to Rescind
is Njos' motion to rescind the Authorization he Dated:
May 26, 2015. (Doc. 81.) This motion was filed on February
21, 2017, after the Court had denied a motion to compel filed
by Njos. In the motion, Njos attempts to rely on the case of
Siluk v. Merwin. 783 F.3d 421 (3d Cir. 2015),
arguing that in said case the Third Circuit adopted a
"per-prisoner" or "sequential"
interpretation of § 1915(b)(2). (Doc. 82.) Njos states
that he was advised upon his recent transfer to the United
States Penitentiary at Florence that in 2016, the United
States Supreme Court decided the case of Bruce v.
Samuels. 136 S.Ct. 627 (2016). (jd.). Bruce
specifically abrogated SM, holding that § 1915(b)(2)
requires that monthly filing-fee payments be paid
simultaneously on a per case basis, not sequentially, even if
this results in 100 percent of the prisoner's monthly
income being collected. Bruce. 136 S.Ct. at 630-33.
instant motion, Njos seeks to rescind the Authorization form
he signed claiming that he was not provided with
"constructive notice" that the filing fee
installments would be deducted "simultaneous-per
case." (Doc. 81.) The Court rejects Njos' argument
for the following reasons. A prisoner proceeding in forma
pauperis under 28 U.S.C. § 1915 is statutorily
required to pay the filing fee if he brings a civil action.
Pursuant to 28 U.S.C. § 1915(b)(1), [I]f a prisoner
brings a civil action or fifes an appeal in forma pauperis,
the prisoner shall be required to pay the full amount of a
filing fee." See ajso Porter v. Dept. of
Treasury. 564 F.3d 176, 180 (3d Cir. 2009)(quoting
section 1915(b)(1)). This Court has no authority to waive an
inmate's not-yet-paid filing fees or refund any portion
of filing fees once he has brought the action, ]d- As the
Third Circuit stated in regard to the filing fees for an
appeal: "It is of no consequence whether an appeal is
voluntarily dismissed, dismissed due to a jurisdictional
defect, or dismissed on the merits-appellants are not
entitled to the return of their filing and docket fees."
Id. at 179. See also In re Saunders. 563
F.App'x 165 (3d Cir. 2014)(nonprecedential); Williams
v. U.S. Dist. Court for District of Newark. 455
F.App'x 142, 144 (3d Cir. 2011) (nonprecedential). The
purpose of the fee requirements is to provide an incentive
"to 'stop and think' before filing suit."
Muhammad v. U.S. Marshals Serv.. 385 F.App'x 70,
73 (3d Cir. 2010)(nonprecedential)(quoting Murray v.
Dosal. 150 F.3d 814, 818 (8th Cir. 1998)).
Njos would like to be released from his obligation to pay the
filing fee under contract principles, this Court is unable to
relieve him of his duty. When he signed the Authorization, he
was agreeing to pay the entire filing fee in the above
matter. While the process of how installments are paid may
have been affected since the time Njos signed the
Authorization, his obligation to pay the full filing fee in
the above matter and the date this obligation was incurred
has never changed. For these reasons, Njos' motion to
rescind the Authorization in the above matter will be denied.
record reveals that on February 1, 2017, Njos was afforded a
period of thirty (30) days to demonstrate that he could meet
the requirements for submitting a written deposition to
Defendant, in compliance with Fed.R.Civ.P. 31. He was advised
that the failure to do so would result in the discovery
deadline being enlarged for a period of sixty (60) days to
enable him to serve Defendant with interrogatory questions.
The discovery period was also enlarged for a period of sixty
(60) days to enable Njos to properly serve his discovery
requests, as originally drafted, on Defendant, and for
Defendant to respond thereto.
approximately one week after the Court issued the above
discovery order, Njos moved to stay this case for an
additional sixty (60) days (Doc. 76), and this request was
granted (Doc. 80). As such, any discovery order with a
deadline entered the prior week has been stayed and
Plaintiffs pending motion to extend the time for discovery
(Doc. 83) will be denied without prejudice. To the extent
Njos seeks to compel discovery responses from Defendant, he
can do so once the stay has been lifted, but he must file a
properly supported motion and attach the challenged
responses. See M.D. Pa. Local Rule 5.4(c).
any motion to compel must be properly served on the
Defendant. See M.D. Pa. Local Rule 5.4(b). Njos cannot rely
on the Clerk of Court to serve his filings, and merely filing
them with the Court does not meet the service requirements.
It is the responsibility of Njos to serve the ...