JACQUET v. FEDERAL BUREAU OF PRISONS et al

Filing 18

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/3/2017. (dmr)

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

EDWIN JACQUET,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 16-4368 (JBS)

v.
WARDEN DAVID ORTIZ,

OPINION
Respondent.

APPEARANCES:
EDWIN JACQUET, Petitioner Pro Se
69422-053
FCI Fort Dix
PO Box 2000
Joint Base MDL, NJ 08640
PAUL J. FISHMAN, United States Attorney
KRISTIN LYNN VASSALLO, Assistant United States Attorney
Office of the U.S. Attorney
970 Broad Street
Newark, New Jersey 07102
Attorney for Respondent David Ortiz
SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on Edwin Jacquet’s
(“Petitioner”) pro se motion for reconsideration of this Court’s
order denying his petition for writ of habeas corpus. Motion for
Reconsideration, Docket Entry 16. Respondent David Ortiz opposes
the motion. Opposition, Docket Entry 17. This motion is being

decided on the papers pursuant to Fed. R. Civ. Pro. 78(b). For
the reasons set forth below, the motion is denied.
BACKGROUND
In March 2012, Petitioner pled guilty in the Southern
District of New York to conspiracy to commit bank fraud, 18
U.S.C. § 1349. Petition, Docket Entry 1 ¶ 10. He was sentenced
to a 63-month term of imprisonment. Id. Petitioner entered the
Bureau of Prison’s (“BOP”) Residential Drug Abuse Program
(“RDAP”) while incarcerated at FCI Miami. Id. ¶ 12. After
completing the RDAP residential component, he was transferred to
the Bronx Community Re-Entry Center (“BCRC”) on September 1,
2015.
During a family visit on October 5, 2015, Petitioner
consumed six Nature Valley Lemon Poppy Seed Breakfast Biscuits.
Id. ¶ 21. “When he returned to BCRC that evening, [Petitioner]
realized that his consumption of the biscuits could trigger a
positive urinalysis result for opiates if a random urine test
was conducted. Therefore, he voluntarily informed BCRC staff
member Rohan of the situation. Rohan assured [Petitioner] that
this would not be a problem.” Id. ¶ 23. A urine test was
conducted that evening and ultimately returned a positive result
for codeine and morphine. Id. ¶¶ 25, 28. Petitioner denied using
drugs and stated he believed the result was a false positive due
to the ingested poppy seeds.
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Petitioner was charged with violating Code 112,1 and the
report was referred to the Center Discipline Committee (“CDC”)
for a hearing. The disciplinary hearing took place on October
14, 2015 at MDC Brooklyn.2 Petitioner’s mother and Mr. Rohan
submitted written statements. After reviewing the witness
statements and documentary evidence, the CDC determined
Petitioner violated Code 112. The Disciplinary Hearing Officer
(“DHO”) upheld the determination and sanctioned Petitioner to
the loss of 40-days good-conduct time and 45-days of non-vested
good-conduct time.
Petitioner, with the assistance of counsel, filed a
petition for writ of habeas corpus under 28 U.S.C. § 2241 on
July 19, 2016. The Court ordered an expedited briefing schedule
in light of Petitioner’s allegations that he had been eligible
for release on August 29, 2016 prior to the revocation of his
good conduct credits. On September 14, 2016, the Court denied
the petition. Petitioner filed a pro se notice of appeal on
October 6, 2016, Docket Entry 15, and a motion for
reconsideration on October 28, 2016.

1

See 28 C.F.R. § 541.3.
Petitioner alleges this hearing occurred without his presence.
Petition ¶ 33.
2

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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). “The Court will grant
a motion for reconsideration only where its prior decision has
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overlooked a factual or legal issue that may alter the
disposition of the matter. The word ‘overlooked’ is the
operative term in the Rule.” Andreyko v. Sunrise Sr. Living,
Inc., 993 F. Supp. 2d 475, 478 (D.N.J. 2014) (internal citations
and quotation marks omitted). Mere disagreement with 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
Petitioner’s motion asks the Court to “reconsider the facts
that make the contract unfair” and to reweigh the evidence that
he was present at his hearing due to the date of the hearing on
the CDC report being changed from “10/15/2015” to “10/14/2015.”
Motion for Reconsideration §§ I, II.1; Petitioner’s Exhibit E.3
Respondent argues Petitioner has not met the high standard for
reconsideration.4

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“Petitioner’s Exhibits” refer to the exhibits filed with the
original petition.
4 Respondent briefly suggests the motion may be time-barred.
Opposition at 2 n.1. “[A] motion for reconsideration shall be
served and filed within 14 days after the entry of the order or
judgment on the original motion by the Judge or Magistrate
Judge.” Local Civ. R. 7.1(i). The order dismissing the petition
was entered September 14, 2016, making any motion for
reconsideration due September 28, 2016. The Clerk’s Office
received the motion on October 24, 2016. In a letter attached to
his motion, Petitioner asserts he handed the motion to prison
authorities for mailing on September 18, 2016, but it was
returned to him unsent on October 17, 2016. Motion for
Reconsideration at 3. As Respondent ultimately takes no position
on the timeliness of the motion, Opposition at 2 n.1, and based
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A. Fairness of Contract
Petitioner argues reconsideration is warranted because the
RDAP provision prohibiting him from eating poppy seeds is “an
oppressive, unreasonably favoring contract that entraps inmates
in an Adhesion Contract in unconscionable condition out of their
control.” Id. § I.1. He states that as there is no way he could
have known the biscuits contained poppy seeds, it would be
unjust to hold him accountable for ingesting them. Id. §§ I.2-3.
He states he asked his counsel to raise this in his original
petition, but counsel did not do so. Id. §§ I.4-5.
Petitioner’s contract law question was not presented to the
Court in his original petition. “Only dispositive factual
matters and controlling decisions of law which were presented to
the court but not considered on the original motion may be the
subject of a motion for reconsideration.” Resorts Int'l, Inc. v.
Greate Bay Hotel & Casino, Inc., 830 F. Supp. 826, 831 (D.N.J.
1992). The Court cannot be said to have “overlooked” an argument
that was not presented. Reconsideration is not warranted on this
basis.
B. Weighing of the Evidence
Petition also asks the Court to reconsider the denial of
his petition based on a reweighing of the evidence regarding his

on Petitioner’s representation to the Court, the Court considers
the motion to have been timely filed.
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presence at the CDC hearing. Motion for Reconsideration § II. He
asserts this Court misinterpreted the submission of the final
CDC Report bearing his initials as evidence that he was present
at the hearing. He states he first saw the “altered” final
report on November 19, 2015 and did not have a copy in his
possession until that time. Id. § II.2 (referencing Petition ¶
44; Petitioner’s Exhibit I).
The Court acknowledges Petitioner’s position on the date he
received a copy of the final CDC Report is a plausible reading
of the record; however, reconsideration is not warranted even
accepting Petitioner’s statements as true. As the Court noted in
its original opinion:
In the “Presentation of Evidence” section of the CDC
Report, Petitioner initialed next to the portion
indicating he had been advised of his rights to present
a statement or remain silent, and to present evidence on
his behalf. He denied the charges. He also initialed
next to the “Summary of Inmate Statement” portion, which
stated “Resident Jacquet stated he consumed a lemon
poppy seed granola bar and believes this caused his
positive result.” He also initialed next to the portion
indicating the hearing took place on “10/14/2015” at
2:58 p.m. Once again, although the same change in date
was made on this form as on the Notice of CDC Hearing,
Petitioner does not allege this change was made after he
initialed the form.
Slip Opinion at 9-10 (internal citations and footnote omitted).
Petitioner admits to signing the CDC Report, but now argues the
date was in fact changed after his review. Motion for
Reconsideration §§ II.1-2, 3. He does not claim any other

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section of the report was altered after he signed the document
and does not deny initialing the other paragraphs as they appear
in the documents submitted to the Court. Whereas the date he
received a copy of the final “altered” report and the fact that
the date might have been changed after Petitioner’s review of
the form have no bearing on whether he attended the hearing, his
confirming the substance of the evidence presented at that
hearing does indicate his presence. Furthermore, “even if the
BOP conducted the hearing in Petitioner’s absence, Petitioner
has not established he was prejudiced by the error.” Id. at 12.
Petitioner provides no law or evidence supporting a claim of
harmful error.
The Court reviewed the entirety of the record and concluded
the disciplinary proceedings complied with Wolff v. McDonnell,
418 U.S. 539 (1974), and that there was some evidence to support
the findings of the CDC and DHO. See Superintendent, Mass. Corr.
Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). Petitioner has
cited no intervening case law or provided new evidence
warranting reconsideration of the Court’s decision. The motion
for reconsideration is therefore denied.

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V. CONCLUSION
For the above stated reasons, the motion is denied. An
accompanying Order will be entered.

March 3, 2017
Date

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

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