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Precedential or Non-Precedential: Non-Precedential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.
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DPS-86 NOT PRECEDENTIAL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.