BETHEA v. CAESAR'S CASINO
Filing
19
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/6/2016. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DEREK BETHEA,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-7593 (JBS-AMD)
v.
CAESAR’S CASINO, et al.,
OPINION
Defendants.
APPEARANCES:
Derek Bethea, Plaintiff Pro Se
887858-538681A
East Jersey State Prison
Lock Bag-R
Rahway, NJ 07065
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Plaintiff Derek Bethea’s (“Plaintiff”),
motion for reconsideration of this Court’s dismissal of his
civil rights complaint. Docket Entry 12. For the reasons set
forth below, the motion is denied.
II.
BACKGROUND
Plaintiff, a prisoner confined in East Jersey State Prison
(“EJSP”), filed this civil rights action against the Caesar’s
Casino in Atlantic City and its security staff. He alleged that
he was illegally detained and searched by a security supervisor
after gambling in the casino on August 19, 2013. Complaint at 1.
Plaintiff further alleged that a security guard jumped on his
back when he attempted to leave the casino, threw Plaintiff to
the ground, and injured Plaintiff’s back and hip. Id. at 2-3;
Motion for Reconsideration ¶¶ A-B. He also indicated the
security guard filed a false disorderly conduct complaint
against him, which was later dismissed. Complaint at 6; Motion
for Reconsideration ¶ C.
The Court reviewed the complaint pursuant to 28 U.S.C. §
1915(e) as Plaintiff is a prisoner proceeding in forma pauperis.
On October 17, 2016, the Court dismissed the complaint as
Plaintiff had failed to state a claim under 42 U.S.C. § 1983 as
he had not sufficiently alleged the federal constitutional
violations were committed by person acting under color of state
law. Slip Opinion at 6-7.1 The Court denied leave to amend as it
was evident from the face of the complaint that the claims were
barred by New Jersey’s two-year statute of limitations and that
amendment would be futile. Plaintiff submitted this Motion for
Reconsideration on November 7, 2016. A notice of appeal was
received by the Third Circuit and referred to this Court to be
deemed filed as of November 25, 2016.
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The Court declined to exercise supplemental jurisdiction over
any state law tort claims. 28 U.S.C § 1367(c); Slip Opinion at 7
n.3.
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III. 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). Mere disagreement with
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the Court’s decision is not a basis for reconsideration. United
States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J.
1999).
IV. ANALYSIS
Plaintiff asserts the Court erred in dismissing his
complaint and by misstating his claims. He states he is not
pursuing assault, false imprisonment, harassment, excessive
force, and malicious prosecution claims, but was instead filing
aggravated assault and “swearing out a false complaint” claims.
Motion for Reconsideration ¶ H. He also indicates “the state
actor involved is the employee of the state, an officer of
Division of Gaming Enforcement,” who is liable “jointly for
gross negligence to render defendants answerable as joint
tortfeasors, concurrent negligence, because security staff
failed to secure me from being harmed by the security staff as a
customer in Caesar’s Casino . . . .” Id. ¶ D.
Nothing in Plaintiff’s motion warrants reconsideration of
the Court’s dismissal order as he has not set forth a violation
of federal statutory or constitutional law by a person acting
under color of state law. Even accepting as true Plaintiff’s
statement that he was detained without an arrest warrant and
searched without a search warrant, he has not set forth a
violation of the Fourth Amendment. The Fourth Amendment, as made
applicable through the Fourteenth Amendment, protects against
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unreasonable searches and seizures by government officials. The
casino and its employees are not state actors to whom the Fourth
Amendment applies. Likewise, Plaintiff’s allegation that a false
complaint was sworn out against him does not sufficiently make
out a federal claim under § 1983 because the person instigating
the complaint, a casino security officer, is not a state actor.
The fact that a Division of Gaming Enforcement employee was
tangentially involved does not mean the casino and its employees
acted under color of state law; Plaintiff specifically stated in
his complaint that the Division of Gaming Enforcement employee
told the casino it had no authority to detain Plaintiff on the
state’s behalf. Complaint at 4-5. “[T]he under-color-of-statelaw element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)
(internal quotation marks omitted). Whatever claims Plaintiff
may have against Caesar’s Casino and its staff, federal court is
not the place in which to pursue them.
Moreover, Plaintiff has not addressed the fact that the
complaint is barred by the two-year statute of limitations. To
the extent his submission of a letter from the Atlantic County
Department of Law dated July 11, 2014, Motion for
Reconsideration at 13, constitutes an attempt to explain the
delay in filing, it is insufficient to warrant any tolling of
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the limitations period. The letter indicates Plaintiff requested
his medical records from the Atlantic County Department of
Public Safety/Adult Detention, and was informed that “there is
no problem releasing this information to you” upon payment of
copying and mailing fees in the amount of $8.80. Id. This does
not provide grounds for tolling the statute of limitations from
the expiration of the limitations period on August 19, 2015 to
the date the complaint was mailed, October 12, 2015.
The motion for reconsideration is denied.
V.
CONCLUSION
For the reasons stated above, the motion is denied. An
appropriate order follows.
December 6, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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