GAINES v. BUSNARDO et al

Filing 59

OPINION. Signed by Chief Judge Jerome B. Simandle on 9/29/2015. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HONORABLE JEROME B. SIMANDLE

HERMAN GAINES,
Plaintiff,

Civil Action
No. 13-6566 (JBS-JS)

v.
BRAD BUSNARDO, et al.,

OPINION
Defendants.

APPEARANCES:
HERMAN GAINES, Plaintiff Pro Se
429989/ 233523C
NJSP
P.O. BOX 861
Trenton, New Jersey 08625
THOMAS B. REYNOLDS, ESQ.
REYNOLDS & HORN, P.C.
750 Route 73 South, Suite 202A
Marlton, New Jersey 08053
Attorney for Defendants Brad Busnardo and Mary Ellen Green
SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on Plaintiff Herman
Gaines’ (“Plaintiff”) Motion to Amend the Complaint (Docket
Entry 54), and the Cross-Motion of Defendants Brad Busnardo and
Mary Ellen Green (“Defendants”) Cross-Motion for Reconsideration
of this Court’s order denying summary judgment in part. (Docket
Entry 57). Defendants oppose Plaintiff’s motion, (Docket Entry

57), and Plaintiff opposes the cross-motion. (Docket Entry 58)
These motions are being considered on the papers pursuant to
Fed. R. Civ. P. 78(b). For the reasons set forth below, the
motions will be denied.
BACKGROUND
A. Procedural History
Plaintiff filed a complaint in the Superior Court of New
Jersey, Cumberland County on September 3, 2013, raising
violations of the Eighth Amendment and state medical malpractice
claims. He alleged Defendants, medical professionals at South
Woods State Prison, denied him adequate medical care by
mistreating a ruptured Achilles’ tendon. (Docket Entry 1 at 6).
He further alleged an officer at South Woods, Defendant John
Doe, was negligent and deliberately indifferent to his serious
medical needs by forcing him to walk to the medical unit on his
ruptured tendon instead of summoning the medics to Plaintiff’s
location. (Docket Entry 1 at 10). On October 31, 2013,
Defendants filed a notice of removal to this Court pursuant to
28 U.S.C. § 1446. (Docket Entry 1). This Court screened the
complaint pursuant to 28 U.S.C. § 1915A and permitted the case
to proceed. (Docket Entry 5).
On November 4, 2013, Magistrate Judge Joel Schneider issued
a scheduling order setting the deadline for amending the
pleadings for February 3, 2014. (Docket Entry 3 ¶ 2). The
2

deadline for factual discovery was set for April 30, 2014.
(Docket Entry 3 ¶ 3). By Order dated December 27, 2013,
Magistrate Judge Schneider extended the deadline for amending
the pleadings to March 3, 2014 and the deadline for factual
discovery until May 30, 2014. (Docket Entry 9 ¶¶ 2-3). Thus, the
parties had seven months, from November 2013 through May 2014 to
complete discovery, including the deposition of Plaintiff that
Defendants now seek. Defendants filed their pretrial memorandum
on January 29, 2014, (Docket Entry 17), and Plaintiff filed his
pretrial memorandum on February 3, 2014, (Docket Entry 18).
During the period for obtaining factual discovery, on
February 11, 2014, Defendants filed a motion for summary
judgment arguing that as Plaintiff had not provided an affidavit
of merit nor retained an expert, they were entitled to judgment
as a matter of law. (Docket Entry 20). Plaintiff filed a crossmotion for summary judgment on March 4, 2014. (Docket Entry 26).
Defendants filed another motion for summary judgment, raising
the same arguments as before, on June 2, 2014, (Docket Entry
31), and withdrew their previous motion on September 10, 2014.
(Docket Entry 32). By Opinion and Order dated December 23, 2014,
this Court granted Defendants’ motion in part and denied it in
part by dismissing Plaintiff’s state medical malpractice claims,
but permitting his Eighth Amendment claim to proceed. (Docket
Entries 33 and 34).
3

On January 6, 2015, Magistrate Judge Schneider issued an
amended scheduling order requiring Plaintiff’s portion of the
final pretrial order by February 6, 2015. (Docket Entry 37). The
Joint Final Pretrial Order was scheduled to be filed by February
27, 2015. (Docket Entry 37). On January 15, 2015, Defendants
requested via letter to Magistrate Judge Schneider for leave to
“proceed with Factual and Expert Discovery to further
investigate and analyze the sufficiency of the basis or merits
of the claims asserted in this matter.” (Docket Entry 38). They
also requested leave to “file a substantive Motion for Summary
Judgment, based upon the Merits as developed through meaningful
Discovery.” (Docket Entry 37). Magistrate Judge Schneider denied
the request to conduct late discovery on January 20, 2015.
(Docket Entry 38). Defendants did not appeal that order.
On February 2, 2015, Plaintiff filed a motion to amend the
complaint. (Docket Entry 40). Defendants filed their opposition
to Plaintiff’s motion together with a motion for reconsideration
of this Court’s summary judgment determination, or, in the
alternative, for a reopening of discovery. (Docket Entry 42).
Plaintiff filed his opposition to Defendants’ motion, (Docket
Entry 43), and Defendants filed a sur-reply with leave of court,
(Docket Entry 47). Plaintiff filed a sur-reply as well. (Docket
Entry 50).

4

While those motions were pending before the Court,
Plaintiff filed another motion to amend his complaint along with
a motion asking this Court to order South Woods State Prison to
answer his administrative remedy requests. (Docket Entry 54).1
Defendants re-submitted their cross-motion for reconsideration
simultaneously with their opposition to Plaintiff’s motion.
(Docket Entries 56 and 57).2
B. Factual Background
1.

Motion to Amend the Complaint

Plaintiff seeks leave to amend his complaint to include
specific damage amounts: $100,000 in compensatory damages per
defendant, $100,000 in punitive damages per defendant, $100,000
for pain and suffering per defendant, and $100,000 in emotional
distress damages per defendant. (Docket Entry 54 at 28).3 The
remainder of the proposed amended complaint is virtually
identical to the original complaint, including the state medical
malpractice causes of action that have been dismissed by this
Court. He also asks this Court to order South Woods State Prison
to answer his previously filed administrative remedies.

1

The Court deems the previous motion to amend, Docket Entry 40,
withdrawn as superseded by Docket Entry 54.
2 The Court deems the previous cross-motion for reconsideration,
Docket Entry 47, withdrawn as superseded by Docket Entry 57.
3 Plaintiff’s original complaint simply stated “Plaintiff
believes he should be compensated financially for each claim of
action.” (Docket Entry 1 at 11).
5

Defendants object to Plaintiff’s motion. They argue that
amendment of the complaint is futile, due to the inclusion of
the previously dismissed state law claims, and unduly
prejudicial as the inclusion of punitive damages at this late
stage in the litigation deprives them of the ability to defend
themselves and prepare their case. (Docket Entry 56-4 at 11-15).
They request that in the event Plaintiff is given leave to amend
his complaint, they be given additional discovery time in order
to depose Plaintiff regarding his basis for punitive damages.
(Docket Entry 56-4 at 13-14).
Plaintiff asserts he included the state claims in his
proposed amended complaint solely to preserve the issue of their
dismissal for review by the Third Circuit Court of Appeals.
(Docket Entry 54 at 26).
2.
Cross-Motion for Reconsideration or Extension of
Discovery
Defendants’ cross-motion asks this Court to reconsider its
December 23, 2014 order denying summary judgment on Plaintiff’s
Eighth Amendment claim. As they did in their motion for summary
judgment, Defendants argue Plaintiff’s failure to retain an
expert is fatal to his complaint. (Docket Entry 56-4 at 19).
They also advance arguments that were not presented in their
motion for summary judgment.

6

Defendants argue that Plaintiff’s complaint is not a
deliberate indifference claim but instead a dispute over the
adequacy of the treatment provided, as Plaintiff acknowledges he
was given an ACE wrap and ankle brace and was offered Motrin and
ice. (Docket Entry 56-4 at 16-17). “There is no genuine issue of
material fact that Moving Defendants did indeed treat
Plaintiff’s pain. Accordingly, Plaintiff’s claims of 8th
Amendment violations involve solely a dispute over the adequacy
of the medical treatment provided.” (Docket Entry 56-4 at 16).
They also contend Plaintiff has failed to “provide any verifying
medical evidence that the pain he suffered was caused by
inadequate medical treatment as opposed to the Achilles’ tendon
rupture itself. Accordingly, the 8th Amendment claim must be
dismissed.” (Docket Entry 56-4 at 17-18). They also argue for
the first time before this Court that they are entitled to
qualified immunity on Plaintiff’s Eighth Amendment claim.
(Docket Entry 56-4 at 22).
Defendants request that in the event this Court denies
their motion for reconsideration, the Court reopen discovery to
permit them to depose Plaintiff on his grounds for punitive
damages and amount of damages. (Docket Entry 56-4 at 24-25).
Plaintiff objects to Defendants’ requests as the discovery
deadline has long since passed and “Defendants had ample
opportunity to depose Plaintiff prior to their motion for
7

summary judgment but chose not to . . . .” (Docket Entry 58 at
12). He states the proposed amended complaint contains no new
allegations, just “characterization[s] of options of treatment
which Busnardo could have provided to address my serious medical
need(s), but for whatever reason, chose not to.” (Docket Entry
58 at 12).
STANDARDS OF REVIEW
Regarding Plaintiff’s motion to amend his complaint, Rule
15(a) of the Federal Rules of Civil Procedure permits a party to
amend a pleading once as a matter of course twenty-one (21) days
after serving the pleading or twenty-one (21) days “after a
responsive pleading or service of a motion under Rule 12(b),
(e), or (f), whichever is earlier.” Fed. R. Civ. Pro.
15(a)(1)(A)-(B). “In all other cases, a party may amend its
pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice
so requires.” Fed. R. Civ. Pro. 15(a)(2). Leave to amend a
pleading may be denied where the court finds: (1) undue delay;
(2) undue prejudice to the non-moving party; (3) bad faith or
dilatory motive; or (4) futility of amendment. Shane v. Fauver,
213 F.3d 113, 115 (3d Cir. 2000). A motion to amend made after a
scheduling order deadline has passed, however, must also meet
Rule 16's “good cause requirement.” Dimensional Commc'ns, Inc.
v. OZ Optics, Ltd., 148 F. App'x 82, 85 (3d Cir. 2005) (citing
8

E. Minerals & Chems. Co. v. Mahan, 225 F.3d 330, 340 (3d Cir.
2000)).
Defendants’ motion for reconsideration is governed by Local
Civil Rule 7.1(i) which 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 . . . .”4 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 Corp., 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) (en banc); 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–

4

Defendants cite to Federal Rule of Civil Procedure 54(d) for
their motion. As that subsection refers to Costs and Attorney’s
Fees, the Court presumes they intended to reference subsection
(b). However, Local Civil Rule 7.1(i) governs the Court's review
of motions for reconsideration.
9

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). Reconsideration
motions may not be used to relitigate old matters, nor to raise
arguments or present evidence that could have been raised prior
to the entry of judgment. Florham Park Chevron, Inc. v. Chevron
U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988); see also
Mauro v. N.J. Supreme Court, 238 F. App’x 791, 793 (3d Cir.
2007).
IV.

DISCUSSION

A.

Motion to Amend Complaint
This litigation has been ongoing for nearly two years, and

dispositive motions have been filed and adjudicated by this
Court. The time for amending the pleadings has long since
passed. (See Docket Entry 9 ¶¶ 2-3). Even if the litigation was
not at this late stage, Plaintiff has not demonstrated good
cause for amendment under Federal Rule of Civil Procedure 16.
Plaintiff indicates he included the dismissed claim in his
amended complaint in order to preserve his ability to challenge
the dismissal of his state claims on appeal. (Docket Entry 54 at
26). It is understandable that Plaintiff is concerned about
properly preserving issues for appellate review, however it is
not necessary to include previously dismissed claims in an
10

amended complaint in order to do so. The December 23, 2014 order
and opinion will be reviewable by the Third Circuit after the
entry of a final order and the filing of a timely appeal by
either party. “[A] party is entitled to a single appeal, to be
deferred until final judgment has been entered, in which claims
of district court error at any stage of the litigation may be
ventilated.” Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 868 (1994); see also Behrens v. Pelletier, 516 U.S.
299, 305 (1996) (noting “fully consummated decisions [that] are
but steps towards final judgment” merge with final judgment on
appeal (alteration in original) (internal quotation marks
omitted)); Calma v. Holder, 663 F.3d 868, 873 (7th Cir. 2011)
(“Interim rulings and alternative theories alike are folded into
the final judgment . . . .”); Lazy Oil Co. v. Witco Corp., 166
F.3d 581, 585 (3d Cir.) (citing Behrens), cert. denied, 528 U.S.
874 (1999). Thus there is no good cause to permit the filing of
an amended complaint that includes the state medical malpractice
claims.
Additionally, the inclusion of the state medical
malpractice claims renders amendment of the complaint futile.
“‘Futility’ means that the complaint, as amended, would fail to
state a claim upon which relief could be granted. In assessing
‘futility,’ the District Court applies the same standard of
legal sufficiency as applies under Rule 12(b)(6).” Shane v.
11

Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citing In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d
Cir. 1997)). The proposed amended complaint includes the state
medical malpractice claims this Court dismissed in its December
23, 2014 order and opinion. (Docket Entries 33 and 34).
Plaintiff did not seek reconsideration of the Court’s order, and
he explicitly states he is not seeking reconsideration of that
order at this time. (Docket Entry 54 at 26).
When an amended complaint is filed, however, it supersedes
the original and renders it of no legal effect, unless the
amended complaint specifically refers to or adopts the earlier
pleading. See W. Run Student Hous. Assocs., LLC v. Huntington
Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013) (collecting cases).
See also 6 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1476 (3d ed. 2008). Permitting the
filing of the amended complaint would, in effect, reinstate the
state medical malpractice claims. These claims would once again
be vulnerable to a motion to dismiss made by Defendants, again
resulting in their dismissal due to Plaintiff’s failure to
submit an affidavit of merit as required by N.J. STAT. ANN. §
2A:53A-27. Therefore amendment of the complaint would be futile.
See Shane, 213 F.3d at 115.
Likewise, it is unnecessary for Plaintiff to allege a
specific amount of damages in his complaint. Federal Rule of
12

Civil Procedure 54 states that other than a default judgment,
“[e]very other final judgment should grant the relief to which
each party is entitled, even if the party has not demanded that
relief in its pleadings.” Fed. R. Civ. P. 54(c). Plaintiffs
cannot recover for claims they never alleged; however, courts
should grant the relief justified by the facts for any claim
stated. See USX Corp. v. Barnhart, 395 F.3d 161, 165 (3d Cir.
2004) (“The rule was meant to protect a plaintiff from clumsy
pleading, which, through technical oversight, might deprive it
of a deserved recovery.”), cert. denied, 546 U.S. 935 (2005);
see also Cancellier v. Federated Dep't Stores, 672 F.2d 1312,
1319 (9th Cir.) (“No specific prayer for emotional distress or
punitive damages is needed. A final judgment must grant the
relief to which the prevailing party is entitled, ‘even if such
party has not demanded such relief in his pleadings.’” (quoting
Fed. R. Civ. P. 54(c)), cert. denied, 459 U.S. 859 (1982). In
the event Plaintiff is successful at trial, a jury will
determine the amount of damages to which he is entitled, if any,
including punitive damages.5

5

The Court specifically finds that Plaintiff’s reference in the
original complaint, “Plaintiff believes he should be compensated
financially for each claim of action,” (Docket Entry 1 at 11),
includes punitive damages. Moreover, Defendants understood
Plaintiff to be seeking punitive damages, as will be discussed
infra Part IV.C. It is therefore unnecessary to allow amendment
of the complaint to include punitive damages as Plaintiff’s
complaint already seeks punitive damages. As with compensatory
13

As Plaintiff has not demonstrated good cause for amendment
of the complaint, Fed. R. Civ. Pro. 16(a)(4), and said amendment
would be futile in any event, the Court finds it is not in the
interests of justice to permit the amendment of the complaint as
proposed by Plaintiff. Fed. R. Civ. Pro. 15(a)(2). Plaintiff’s
motion to amend the complaint is denied.
Plaintiff has also asked this Court to order South Woods
State Prison, a non-party to this action, to respond to his
administrative remedy requests in order that his administrative
remedies may be deemed fully exhausted. (Docket Entry 54 at 512). Assuming without deciding this Court has the authority to
order the prison to answer under the All Writs Act, 28 U.S.C. §
1651,6 the Court declines to do so.
The Prison Litigation Reform Act (“PLRA”) states:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.

damages, the amount is for a jury to determine in the event
Plaintiff has set forth sufficient evidence warranting punitive
damages.
6 See United States v. N.Y. Tel. Co., 434 U.S. 159, 174
(1977)(“The power conferred by the Act extends, under
appropriate circumstances, to persons who, though not parties to
the original action or engaged in wrongdoing, are in a position
to frustrate the implementation of a court order or the proper
administration of justice, and encompasses even those who have
not taken any affirmative action to hinder justice.”).
14

42 U.S.C. § 1997e(a). Failure to exhaust, however, is an
affirmative defense that must be pled by defendants. Ray v.
Kertes, 285 F.3d 287, 295 (3d Cir. 2002). “Failure to raise an
affirmative defense by responsive pleading or by appropriate
motion generally results in the waiver of that defense.”
Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir.1991). The
Third Circuit, however, has not yet decided whether failure to
raise the exhaustion defense in the first responsive pleading
constitutes a waiver. See McCargo v. Guelich, 47 F. App’x 96 (3d
Cir. 2002); see also Drippe v. Tobelinski, 604 F.3d 778 (3d Cir.
2010) (declining to read a strict timing requirement into the
PLRA for prosecution of the affirmative defense of failure to
exhaust).
Defendants did not include failure to exhaust
administrative remedies in their answer, (see Docket Entry 1-4);
in their motion for summary judgment, (see Docket Entry 31);
either of their motions for reconsideration, (see Docket Entries
42, 56, and 57); or in their opposition to Plaintiff’s motion,
(Docket Entry 56-4 at 15). They have not contested Plaintiff’s
assertion that prison officials failed to respond to his
grievances. (Docket Entry 54 at 7-12). Therefore there is no

15

reason to order South Woods to respond to Plaintiff’s
administrative remedy requests.7

B.

Motion for Reconsideration
Defendants request this Court reconsider its December 23,

2014 order denying their motion for summary judgment as to
Plaintiff’s Eighth Amendment claims. (Docket Entry 57). Under
Local Civil Rule 7.1(i), motions for reconsideration are
required to be filed within fourteen (14) days after entry of
the order or judgment. Defendants originally filed their motion
on February 17, 2015, almost two months after the order denying
summary judgment. (Docket Entry 42). The present cross-motion,

7

The Court further notes that “[t]he PRLA does not require
exhaustion of all remedies. Rather, it requires exhaustion of
such administrative remedies ‘as are available.’” Brown v.
Croak, 312 F.3d 109, 111 (3d Cir. 2002) (quoting 42 U.S.C. §
1997e(a)); see also Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.
2000). “Prison officials may not take unfair advantage of the
exhaustion requirement . . . and a remedy becomes ‘unavailable’
if prison employees do not respond to a properly filed grievance
or otherwise use affirmative misconduct to prevent a prisoner
from exhausting.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006); see also Todd v. Benning, 173 F. Appx. 980, 982–83 (3d
Cir. 2006); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001)
(“[A] remedy that prison officials prevent a prisoner from
‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a) . .
. .”) (alterations in original). Examples of affirmative
misconduct on the part of prison officials include refusing to
provide appropriate grievance forms when requested, Mitchell v.
Horn, 318 F.3d 523, 529 (3d Cir. 2003), and failing to file or
respond to a prisoner's grievances, Camp, 219 F.3d at 280–81
(finding that administrative remedies were unavailable where
prison officials refused to file plaintiff's grievances).
16

filed July 6, 2015, (Docket Entry 57), is even more untimely. An
untimely filed motion for reconsideration “may be denied for
that reason alone.” Morris v. Siemens Components, Inc., 938 F.
Supp. 277, 278 (D.N.J. 1996); see also Wright v. Camden City
Police Dep’t, 2007 WL 1582975, *1 (D.N.J. May 31, 2007).
Defendants have set forth no facts justifying their delay,
therefore this Court will deny their motion for reconsideration
as untimely.
Even if their motion had been timely, Defendants do not
meet the high standard required for relief on a motion for
reconsideration. They do not set forth an intervening change in
the controlling law, nor do they argue evidence is now available
that was not available when the Court made its summary judgment
decision. See U.S. ex rel. Shumann v. Astrazeneca Pharm. L.P.,
769 F.3d 837, 848-49 (3d Cir. 2014); Howard Hess Dental Labs.
Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 252 (3d Cir. 2010).
(“[N]ew evidence,” for reconsideration purposes, does not refer
to evidence that a party obtains or submits to the court after
an adverse ruling. Rather, new evidence in this context means
evidence that a party could not earlier submit to the court
because that evidence was not previously available.”).
To prevail under the “manifest injustice” prong, the Defendants
must show that “dispositive factual matters or controlling
decisions of law were brought to the court's attention but not
17

considered.” P. Schoenfeld Asset Mgmt., LLC v. Cendant Corp.,
161 F. Supp. 2d 349, 353 (D.N.J. 2001) (internal quotations and
citations omitted).
As they did in their motion for summary judgment,
Defendants argue that Plaintiff’s failure to retain a medical
expert is fatal to his Eighth Amendment claim. (See Docket Entry
31-4 at 8-17; Docket Entry 56-4 at 19-22). The Court considered
this argument in its Opinion and Order denying summary judgment
on Plaintiff’s Eighth Amendment claim, and Defendants have not
pointed to any fact or controlling legal authority this Court
overlooked.
“A party seeking reconsideration must show more than a
disagreement with the Court's decision, and ‘recapitulation of
the cases and arguments considered by the court before rendering
its original decision fails to carry the moving party's
burden.’” P. Schoenfeld, 161 F. Supp. 2d at 352 (quoting G–69 v.
Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)). “A motion for
reconsideration is improper when it is used solely to ask the
court to rethink what it has already thought through—rightly or
wrongly.” Arista Records, Inc. v. Flea World, Inc., 356 F. Supp.
2d 411, 415 (D.N.J. 2005). The proper procedure would be to
challenge the ruling through the normal appellate process.
Defendants attempt to raise new arguments in their motion
for reconsideration additionally warrants denial of their
18

motion. Motions for reconsideration “are not an opportunity to
argue what could have been, but was not, argued in the original
set of moving and responsive papers.” Bowers v. Nat’l Collegiate
Athletic Assoc., 130 F. Supp. 2d 610, 613 (D.N.J. 2001)
(emphasis in original); see also Mauro v. N.J. Supreme Court,
238 F. App’x 791, 793 (3d Cir. 2007). In interpreting the rule,
courts have held that a judge can only “overlook” matters as to
facts and legal arguments which were appropriately presented to
the court at the time the motion for which reconsideration is
sought was initially decided. Therefore, courts have rejected
moving parties' efforts to expand the reconsideration motion to
include matters that were not presented before the court in the
original motion, but were submitted after the motion has been
decided. See P. Schoenfeld, 161 F. Supp. 2d at 352; Florham Park
Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162
(D.N.J. 1988).
Defendants’ new arguments, i.e., that Plaintiff’s complaint
only alleges disagreement with the provided medical care, that
they are entitled to qualified immunity, and that Plaintiff has
failed to allege a physical injury at their hands, are improper
in a motion for reconsideration.

These arguments could have

been and should have been presented to this Court in the motion
for summary judgment, and nothing in Defendants’ current moving
papers indicates why these arguments were not presented to the
19

Court at that time. This Court cannot and will not reconsider
its summary judgment determination based on Defendants’ late
presentation. Defendants’ motion for reconsideration is denied.
C.

Motion for Extension of Discovery
Defendants also move for an extension of discovery.8 They

assert additional time is needed “in order to depose the
Plaintiff and take any further steps necessary for discovery
purposes.” (Docket Entry 56-4 at 27). They indicate they need to
depose Plaintiff regarding his “new” claim for punitive damages.
(Docket Entry 42 at 27).
Federal common law, as opposed to state law, governs the
issue of damages in an action brought under § 1983. See Basista
v. Weir, 340 F.2d 74, 86–87 (3d Cir. 1965) (recognizing that on
a cause of action under § 1983 “the federal common law of
damages commands the issue”). Thus to the extent Defendants rely
on New Jersey’s Punitive Damages Act, N.J. STAT. ANN § 2A:15-5.9 5.17, their arguments fail. Individual public officers are
liable for punitive damages under § 1983 for their misconduct on
the same basis as other individual defendants. Smith v. Wade,
461 U.S. 30, 35 (1983). Punitive damages are only awarded,

8

Defendants previously requested an extension of discovery from
Magistrate Judge Schneider on January 15, 2015, seven months
after fact discovery concluded on May 30, 2014. (See Docket
Entry 9 ¶ 3; Docket Entry 37). May 30, 2014 was also the
deadline for filing motions pursuant to Local Civil Rule
37.1(a)(1). (Docket Entry 9 ¶ 3).
20

however, if the defendant's conduct is particularly egregious.
Id. at 56.
To recover punitive damages, a state defendant's conduct
must have been “motivated by evil motive or intent” or it must
have “involve[d] reckless or callous indifference to the
federally protected rights of others.” Ibid. It is generally a
question of fact as to whether a defendant's conduct was
motivated by an evil motive or involves reckless indifference.
Coleman v. Rahija, 114 F.3d 778, 787 (3d Cir. 1997).
Defendants’ characterization of Plaintiff’s demand for
punitive damages as being a “new claim” is a misrepresentation
of the record, including Defendants’ previous submissions to
this Court. See Fed. R. Civ. Pro. 11(b)(3). In their answer to
Plaintiff’s complaint, Defendants’ assert as their thirty-fourth
defense: “The answering Defendants did not act with malice but
did act in good faith, therefore, the Plaintiff is not entitled
to damages.” (Docket Entry 1 at 28). The denial of the requisite
state of mind for the imposition of punitive damages is a clear
recognition by Defendants that Plaintiff sought punitive damages
in his complaint.9 Moreover, Defendants specifically stated in

9

Furthermore, to establish deliberate indifference liability
under § 1983 on Plaintiff's Eighth Amendment claim, the jury
must find that Defendants were subjectively reckless, i.e., that
they “disregard[ed] a risk of harm of which [they were] aware.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). As the award of
punitive damages may be based on a determination of recklessness
21

their pretrial memorandum submitted on January 29, 2014 that
“Plaintiff is seeking punitive damages.” (Docket Entry 17 at 4
(emphasis added)). To claim now they had no awareness of
Plaintiff’s demand during the discovery period and to seek an
extension of discovery on that basis is clearly contradicted by
the record. The Court finds that Defendants were well aware of
Plaintiff’s claim for punitive damages, and their failure to
seek discovery regarding that claim during the discovery period
is not good cause for extending discovery now that their summary
judgment motion has proved unsuccessful.
Defendants attempt to blame this Court for their failure to
conduct full discovery in the time allotted to them. (Docket
Entry 42 at 27). Defendants removed the case to this Court on
October 31, 2013 and the date for conclusion of discovery was
extended to the final end date of May 30, 2014. Defendants could
have easily used the discovery period to “proceed with Factual
and Expert Discovery to further investigate and analyze the
sufficiency of the basis or merits of the claims asserted” and
filed one “substantive Motion for Summary Judgment, based upon
the Merits as developed through meaningful Discovery” at the

on the part of Defendants, there was sufficient notice of the
potential for a punitive damages claim inherent in Plaintiff’s
Eighth Amendment claim. Therefore even if Defendants had not
explicitly stated they were aware of the demand for punitive
damages, they could have pursued discovery of the claim during
the set time for discovery.
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close of discovery. (See Docket Entry 37). Instead, Defendants
chose to file their summary judgment motion without taking
discovery upon the merits of Plaintiff’s complaint. It is true
that a motion for summary judgment may be filed at any time
until 30 days after the close of discovery, Fed. R. Civ. Pro.
56(b), however this does not excuse Defendants’ failure to use
the discovery period wisely. Defendants also did not seek a stay
of discovery while the summary judgment motion was pending. The
mere fact that summary judgment was denied does not entitle
Defendants to reopen discovery many months after it ended.
V. CONCLUSION
For the reasons stated above, Plaintiff’s motion to amend
the complaint is denied. Defendants’ motion for reconsideration
and motion for an extension of the discovery period are denied.
An accompanying Order will be entered.
Plaintiff may again seek appointment of counsel as such
assistance may be warranted in attempting to resolve this case
by negotiation or in preparing for trial.

September 29, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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