DIPPOLITO v. THE UNITED STATES OF AMERICA et al
Filing
67
OPINION FILED. Signed by Judge Robert B. Kugler on 8/2/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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FRANK DIPPOLITO,
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Plaintiff,
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Civ. No. 13-0175 (RBK) (JS)
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v.
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OPINION
UNITED STATES OF AMERICA, et al., :
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Defendants.
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____________________________________:
ROBERT B. KUGLER, U.S.D.J.
I. INTRODUCTION
Frank Dippolito (“Plaintiff”) is a former federal prisoner who was previously
incarcerated at the Federal Correctional Institution (“F.C.I.”) Fort Dix, in Fort Dix, New Jersey,
at the time he filed this action. In January, 2013, Plaintiff submitted his pro se civil rights
complaint pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). On July 15, 2013, Plaintiff's application to proceed in forma pauperis was granted. (ECF
No. 4.)
The Defendants moved to dismiss the Second Amended Complaint under FED. R. CIV. P.
12(b)(6) for failure to state a claim upon which relief may be granted in two separate motions.
On December 21, 2015, the Court granted in part and denied in part Defendants’ motion. (ECF
No. 55.) On January 5, 2016, remaining Defendants filed the instant motion for reconsideration
with the Court. (ECF No. 58.) On March 7, 2016, Plaintiff filed a countermotion for
reconsideration. (ECF No. 63.) For the reasons set forth below, Defendants’ motion will be
denied in part and granted in part, and Plaintiff’s countermotion will be denied.
II. RELEVANT FACTUAL BACKGROUND
Plaintiff brought Bivens claims under the Eighth Amendment to the United States
Constitution. Under the Eighth Amendment, Plaintiff alleged that the conditions present at F.C.I.
Fort Dix, taken together, amount to unconstitutional cruel and unusual punishment. Plaintiff also
advanced a claim the Racketeer Influenced Corrupt Organizations Act (“RICO”) stemming from
allegedly retaliatory conduct, as well as allegedly collecting illegal profits by detaining inmates
without cause.
A. Relevant Eighth Amendment Claims
Plaintiff alleges a number of circumstances that, he argues, amount to “cruel and unusual
punishment” under a conditions of confinement theory of liability under the Eighth Amendment.
First, Plaintiff alleges that F.C.I. Fort Dix has a “serious asbestos problem and lead paint issues.”
(ECF No. 42 ¶ 44.) Plaintiff also alleges that the water the inmates are made to drink is
dangerously polluted. (Id. ¶ 47.) He also charges that the conditions in the “5800 block … dining
hall” during the government sequester amounted to unconstitutional overcrowding because one
of the two dining halls had to close, effectively doubling the population of the lone dining hall.
(Id. ¶ 52.) In addition to the dining hall, Plaintiff complains that cells are routinely doublebunked and only have two windows and one ceiling fan. This, combined with F.C.I. Fort Dix’s
policy against personal fans and the “jet exhaust fumes” from nearby McGuire Air Force Base,
allegedly makes for poor ventilation and unsanitary conditions. (Id. ¶¶ 56-60.) Plaintiff asserts
that all of these, taken together, amount to conditions of confinement that fun afoul of the Eighth
Amendment’s prohibition on cruel and unusual punishment.
III. PROCEDURAL BACKGROUND
On January 8, 2013, Plaintiff filed a Complaint with the Court in which he alleged that
the Bureau of Prisons (“BOP”), the United States, and thirty-one named individuals violated
rights afforded to Plaintiff by the First and Eighth Amendments to the United States Constitution
under Bivens, as well as the FTCA and RICO. (See ECF No. 1.) On or about April 9, 2014,
Plaintiff filed an Amended Complaint with the Court in which he added more detail to his
original allegations. (See ECF No. 13.) On October 21, 2014, Defendants United States, Bureau
of Prisons (“BOP”), Lappin, Dodril, Conley, Zickefoose, Hollingsworth, Fitzgerald, Hudgins,
Holdren, Lawhorn, Dynan, Nichols, Hazelwood, Sutherland, McLaughlin, Carroll, Robinson,
Bullock, Alexander, Hardwick, Yeoman, Daniels, Lemyre, Donohue, Kenney, Watts, and Holder
(“Defendants”) filed an Answer with the Court. (See ECF No. 23.) Subsequently, on December
31, 2014, Defendants filed a Motion for Judgment on the Pleadings pursuant to FED. R. CIV. P.
12(c). (See ECF No. 29.) On April 17, 2015, the Court granted Plaintiff leave to file a second
Amended Complaint, which he did. (See ECF Nos. 42, 48.) On May 14, 2015, the above listed
Defendants filed a motion to dismiss Plaintiff’s second Amended Complaint pursuant to FED. R.
CIV. P. 12(b)(6). (See ECF No. 52.) In their motion to dismiss, Defendants argued that a number
of named Defendants must be dismissed from Plaintiff’s First and Eighth Amendment claims
due to lack of personal involvement; that a number of Plaintiff’s First Amendment claims were
untimely; that all claims arising under the FTCA must be dismissed because only the United
States can be a proper defendant under the FTCA and the FTCA does not allow suits for
constitutional torts; and that all claims arising under the RICO Act must be dismissed for lack of
standing. (ECF No. 52-1.)
On June 15, 2015, Plaintiff filed a response in opposition to Defendants’ motions to
dismiss. (See ECF No. 53.) On December 21, 2015, the Court issued an Opinion granting in part
and denying in part Defendants’ motion to dismiss. (ECF No. 55.) Relevant here, the Court
allowed Plaintiff’s Eighth Amendment claims to proceed against Defendants Norwood,
Zickefoose, Hollingsworth, Holdren, Dynan, Daniels, Carroll, Robinson, Bullock, and
Alexander. (Id. at 16.) The Court also dismissed all of Plaintiff’s RICO claims with prejudice.
(Id.) On January 5, 2016, remaining Defendants filed the instant motion for reconsideration with
the Court, arguing that the Court failed to find Plaintiff stated a claim under the Eighth
Amendment, and that all claims as to Defendant Norwood should have been dismissed due to
lack of personal involvement. (ECF No. 58.) On March 7, 2016, Plaintiff filed a countermotion
for reconsideration, urging the Court to “reinstate” his RICO claims. (ECF No. 63.) For the
reasons set forth below, Defendants’ motion will be denied in part and granted in part, and
Plaintiff’s countermotion will be denied.
IV. STANDARD OF REVIEW
Local Civil Rule 7.1 allows a party to seek a motion for reargument or reconsideration of
“matter[s] or controlling decisions which the party believes the Judge or Magistrate Judge has
overlooked . . . .” Local Civ. R. 7.1(i). Whether to grant a motion for reconsideration is a matter
within the Court's discretion, but it should only be granted where such facts or legal authority
were indeed presented but overlooked. See DeLong v. Raymond Int'l Inc., 622 F.2d 1135, 1140
(3d Cir. 1980), overruled on other grounds by Croker v. Boeing Co., 662 F.2d 975 (3d Cir.
1981); see also Williams v. Sullivan, 818 F. Supp. 92, 93 (D.N.J. 1993).
To prevail on a motion for reconsideration, the movant must show:
(1) an intervening change in the controlling law; (2) the availability of new
evidence that was not available when the court ... [rendered the judgment in
question]; or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.
U.S. ex rel. Shumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 848-49 (3d Cir. 2014) (citing
Max's Seafood Café ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). The
standard of review involved in a motion for reconsideration is high and relief is to be granted
sparingly. United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994).
V. DISCUSSION
A. Defendants’ Motion for Reconsideration
i. Eighth Amendment Claims
In his Second Amended Complaint, Plaintiff named thirty-one Defendants to be sued in
their individual capacities for violating his Eighth Amendment rights against cruel and unusual
punishment for sufficiently serious conditions of confinement. (See ECF No. 42 at 25.) Plaintiff
alleges that F.C.I. Fort Dix was unconstitutionally “overcrowded, lack[ed] adequate sanitation
and ventilation, expose[d] prisoners to asbestos, polluted water and lead paint, violated … noise
levels, and offer[ed] inadequate medical treatment.” (Id.) Assessing Defendants’ motion to
dismiss, (ECF No. 52), the Court concluded that Plaintiff’s Eighth Amendment claims could
proceed against ten of the thirty-one named Defendants. (ECF No. 55.)
Here, Defendants move for reconsideration because of an alleged oversight by the Court
in failing to find that Plaintiff did, in fact, state an Eighth Amendment claim. According to
Defendants, the Court failed to discuss “whether Plaintiff’s allegations rise to the level of an
Eighth Amendment violation.” (ECF No. 58-1 at 5.) Because the Court concludes that Plaintiff
adequately stated a claim for an Eighth Amendment violation based on a conditions of
confinement theory of liability, Defendants’ motion is denied as to this argument.
Prison conditions can run afoul of the Eighth Amendment’s proscription on cruel and
unusual punishment by either ignoring “evolving standards of decency” or involving
“unnecessary and wanton infliction of pain.” See Rhodes v. Chapman, 452 U.S. 337, 346 (1981)
(citing Gregg v. Georgia, 428 U.S. 153, 171 (1976); Trop v. Dulles, 356 U.S. 86, 101 (1958)).
To assert an Eighth Amendment claim resulting from an inmate’s conditions of confinement, a
prisoner must first show that the alleged deprivation is “sufficiently serious” and that the prisoner
has been deprived of the “minimal civilized measure of life's necessities.” Farmer v. Brennan,
511 U.S. at 834 (1994). A prisoner must then show that prison officials recognized the
deprivation and demonstrated “deliberate indifference” to the prisoner’s health or safety. Id.
Only “extreme deprivations” are sufficient to present a claim for unconstitutional conditions of
confinement. See Fantone v. Herbik, 528 F. App’x 123, 127 (3d Cir. 2013) (quoting Hudson v.
McMillian, 503 U.S. 1, 8–9 (1992)).
Here, though Plaintiff names a number of conditions with which he has issues, i.e., lack
of winter weather attire, overcrowded dining halls, lead paint and asbestos, none of which rise to
the level of a potential Eighth Amendment violation, and certainly not without an allegation of a
present injury. See Fontroy v. Owens, 150 F.3d 239, 244 (3d Cir. 1998). However, Plaintiff’s
claims of a perennially unsanitary and inadequately ventilated living space, with a constant fog
of jet fume to contend with, does so rise.
Specifically, Plaintiff claims that half of the windows at F.C.I. Fort Dix have been
“closed up,” leading to very poor ventilation. (ECF No. 42 ¶ 56.) Plaintiff then notes that the
ventilation systems in general are “turned off in fall, winter, and spring to conserve resources
while inmates are sickened[,]” (Id. ¶ 60.) According to Plaintiff, this causes “respiratory
distress.” (Id. ¶ 61.) Added to this is the jet exhaust from McGuire Air Force Base, which
“frequently lingers for days at a time,” further contributing to the prison as a “breeding ground
for all manner of disease[.]” (Id. ¶¶ 61, 57.) Additionally problematic is Plaintiff’s allegation that
the inmates at F.C.I. Fort Dix are forced to drink polluted water, water that the staff has “been
advised not to drink.” (Id. ¶ 47.) Taken together, these allegations state a claim for a potential
Eighth Amendment violation on a conditions of confinement theory of liability. Indeed,
inadequate ventilation “increases the risk of disease transmission and contributes to a finding of
unconstitutional conditions.” Carty v. Farrelly, 957 F. Supp. 727, 736 (D.V.I. 1997).
In their motion, Defendants point the Court to Burkholder v. Newton, 116 F. App’x 358
(3d Cir. 2004) for the proposition that the Court should dismiss all of Plaintiff’s claims. There,
the Third Circuit denied a conditions of confinement claim based on exposure to cold
temperatures and an unsanitary toilet for 30 days. Here, by contrast, the crux of Plaintiff’s claim
is a continuing violation, seemingly everlasting, of unsanitary and inadequate ventilation.
Plaintiff here does not complain of cold or of a messy toilet, but of a “breeding ground for
disease” caused by total lack of circulation and the ever presence of lingering jet exhaust as well
as being forced to drink polluted water. Defendant’s cited case is simply inapposite. Therefore,
Defendants’ motion for reconsideration is denied and Plaintiff’s Eighth Amendment claims shall
proceed. See, e.g., id.; Jones v. Sec'y Pennsylvania Dep't of Corr., 589 F. App'x 591, 592 (3d Cir.
2014) (noting that lack of ventilation is a concern and that “adequate ventilation and fresh air”
should be shown); Kost v. Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (“unbearable
temperatures and lack of ventilation” enough to state an Eighth Amendment claim); Griffin v.
Beard, 2009 WL 179778, at *4 (M.D. Pa. Jan. 26, 2009) (finding Eighth Amendment violation
when “the prison lack[ed] adequate ventilation, [and] a thick black smoke cover[ed] the yard…
pos[ing] a serious risk to Plaintiff's short-term and long-term health”); Tillery v. Owens, 719
F.Supp. 1256, 1273 (W.D. Pa. 1989) (finding the combination of “inadequate cell size,
unsanitary conditions, lack of ventilation…” created “an unconstitutional situation”), aff'd, 907
F.2d 418 (3d Cir. 1990); Jordan v. Arnold, 408 F.Supp. 869, 876 (M.D. Pa. 1976) (holding that
placing inmates in “stuffy and foul-smelling” cells with “[l]ittle or no ventilation,” and
inadequate control of commodes and water supply constituted cruel and unusual punishment); cf.
Board v. Farnham, 394 F.3d 469, 486–87 (7th Cir. 2005) (recognizing that “a constitutional right
to adequate ventilation exists”); Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1981) (“A state
must provide ... reasonably adequate ventilation, sanitation, bedding, hygienic materials, and
utilities”); Ames v. Randle, 933 F. Supp. 2d 1028, 1035 (N.D. Ill. 2013) (noting that the state
must provide adequate ventilation). See also Duncan v. Hickenlooper, 631 F. App’x 644, 650
(10th Cir. 2015) (finding an Eighth Amendment violation when inmates were forced to drink
polluted water); Masonoff v. DuBois, 336 F.Supp.2d 54, 59 (D. Mass. 2004) (same).
ii. Personal Involvement of Defendant Norwood
Secondly, Defendants argue that the Court mistakenly allowed claims against Defendant
Norwood to proceed while dismissing claims against twenty-one other named Defendants for
lack of personal involvement. (ECF No. 58-1 at 5-6.) Defendants are correct in asserting that
Defendant Norwood was erroneously grouped with the other nine Defendants, and that there are
“no specific allegations of Norwood’s involvement or knowledge” in the Second Amended
Complaint. (Id. at 8.)
Indeed, Defendant Norwood is only mentioned twice outside of the caption and
introduction in the Second Amended Complaint: once where he is alleged to have turned a “blind
eye” to “illegal standards,” and again where he is simply alleged to have had “allow[ed] cruel
and unusual punishment.” (ECF No. 42 ¶¶ 74, 79.) As such, the Court recognizes this oversight
and Defendants’ motion is granted. Thus, all claims against Defendant Norwood are dismissed
without prejudice and Defendant Norwood shall be terminated from this action.
B. Plaintiff’s Countermotion for Reconsideration
On June 1, 2016, Plaintiff filed a countermotion for reconsideration with the Court. (ECF
No. 63.) In it, Plaintiff asks the Court to “reinstate” his civil RICO count against all Defendants
and for reargument on his dismissed First Amendment retaliation claims. (Id. at 9.) Because said
claims were properly dismissed, Plaintiff’s motion is denied. (See ECF No. 52.)
The Court dismissed Plaintiff’s civil RICO claims with prejudice as to all Defendants for
lack of standing under 18 U.S.C. § 1964, and Plaintiff does not now present the Court with any
information that would warrant reconsideration. The Court also dismissed Plaintiff’s First
Amendment claims without prejudice as to all named Defendants except Defendants Carroll and
Bullock. Again, here Plaintiff simply rehashes arguments the Court has already considered and
rejected. (ECF Nos. 55, 63.) Plaintiff simply seems to be dissatisfied with the Court’s Opinion,
but motions for reconsideration are not the appropriate venue to seek an appeal. See Yurecko v.
Port Authority Trans-Hudson Corp., 279 F.Supp.2d 606, 609 (D.N.J. 2003) (noting that “mere
disagreement with a court’s decision normally should be raised through the appellate process and
is inappropriate on a motion for reargument”). Thus, Plaintiff’s motion is denied.
VI. CONCLUSION
For the reasons stated above, Defendants’ motion for reconsideration is denied in part
and granted in part, and Plaintiff’s countermotion for reconsideration is denied. An
accompanying Order will be entered.
August 2, 2016
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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