BERK v. HOLLINGSWORTH et al

Filing 40

OPINION. Signed by Judge Noel L. Hillman on 12/9/2019. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
MICHAEL BERK,
:
:
Plaintiff,
:
Civ. No. 17-0091 (NLH) (AMD)
:
v.
:
OPINION
:
JORDAN HOLLINGSWORTH, et al., :
:
Defendants.
:
______________________________:
APPEARANCES:
MICHAEL BERK, No. 43739-037
F.C.I. Seagoville
P.O. Box 9000
2113 N. Hwy 175
Seagoville, TX 75159
Plaintiff Pro se
Craig Carpenito, United States Attorney
John T. Stinson, Assistant United States Attorney
Office of the U.S. Attorney
District of New Jersey
402 East State Street
Room 430
Trenton, NJ 08608
Attorneys for Defendants
HILLMAN, District Judge
Plaintiff Michael Berk moves for reconsideration of this
Court’s screening opinion and order, or in the alternative for
permission to file an amended complaint.

See ECF No. 20.

Defendants William Bickart, Jordan Hollingsworth, and Stacey
Marantz move to dismiss the complaint.

ECF No. 33.

For the

following reasons, the motion for reconsideration, or in the
alternative to amend, is denied without prejudice.

Defendants’

motion to dismiss shall be administratively terminated.
I. BACKGROUND
Plaintiff, a federal prisoner, filed a complaint under
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971), alleging that Defendants Warden Jordan Hollingsworth,
Chief Psychologist Stacey Marantz, and Behavioral Management
Programs Coordinator William Bickart directed Plaintiff’s
transfer from the Federal Correctional Institution at Fort Dix
in Fort Dix, New Jersey, a prison located near his family and
home, to the Federal Correctional Institution at Seagoville in
Texas, because of certain content contained in his outbound
mail.

Plaintiff contends the transfer was retaliation for

exercising his First Amendment right to freedom of expression.
See ECF No. 1.

He also alleged Defendant Jane Doe opened, read,

and confiscated his personal outbound mail in violation of the
First and Fourth Amendments and that Defendant Caroline Gary,
who is employed at the Bureau of Prison’s Designation and
Sentence Computation Center and not at FCI Fort Dix, approved
and processed his transfer.

Id.

The Court screened the complaint under 28 U.S.C. §
1915(e)(2)(B) and concluded that the complaint should proceed
against Defendants Hollingsworth, Martinez, Bickart, and Doe.
2

ECF No. 13.

Defendant Gary was dismissed.

Id.

The Court noted

that an amended complaint and “supplement” that Plaintiff filed
prior to screening violated Federal Rule of Civil Procedure
15(a).

Id. at 2 n.1.

Summonses were issued to Defendants.

ECF

No. 18.
On May 28, 2019, Plaintiff filed his motion for
reconsideration, or alternatively to amend his complaint.
No. 20.
dismiss.

ECF

After Defendants were served, they filed a motion to
ECF No. 33.

In their motion to dismiss, Defendants

oppose Plaintiff’s motion for reconsideration or to amend.
II. STANDARD OF REVIEW
A court may grant a motion for reconsideration if the
moving party shows one of the following: (1) an intervening
change in the controlling law; (2) the availability of new
evidence that was not available when the court issued its order;
or (3) the need to correct a clear error of law or fact or to
prevent manifest injustice.

Johnson v. Diamond State Port

Corp., 50 F. App’x 554, 560 (3d Cir. 2002) (quoting Max's
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
Local Rule 7.1 provides that motions to reconsider shall be
filed within fourteen (14) days from the date of the entry of
the order or judgment to be reconsidered unless otherwise
provided by statute.

See D.N.J. Loc. R. 7.1.

3

Rule 15(a) of the Federal Rules of Civil Procedure permits
a party to amend a pleading once as a matter of course twentyone (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.”
15(a)(1)(A)-(B).

Fed. R. Civ. P.

A court may deny leave to amend a pleading

where it finds: (1) undue delay; (2) undue prejudice to the nonmoving party; (3) bad faith or dilatory motive; or (4) futility
of amendment.
2000).

Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.

“‘Futility’ means that the complaint, as amended, would

fail to state a claim upon which relief could be granted.”

Id.

The Court applies the same standard of legal sufficiency as
applies under Rule 12(b)(6).

“The court should freely give

leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2).

III. DISCUSSION
Petitioner argues the Court should reconsider its March 5,
2019 decision to prevent manifest injustice.

ECF No. 20 at 3.

He does not cite the legal authority for his motion for
reconsideration, but his motion for reconsideration is untimely
under this District’s rules.

Local Civil Rule 7.1 requires

motions for reconsideration to be filed within 14 days of the
judgment being challenged.

Local Civ. R. 7.1(i).

The Court

screened the complaint and struck the proposed amendments on
March 5, 2019.

ECF No. 13.

Plaintiff did not submit his motion
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for reconsideration until 78 days later on May 22, 2019.

His

motion is also untimely under Rule 59, which requires motions to
alter or amend a judgment to be filed no later than 28 days
after the entry of the judgment.

Fed. R. Civ. P. 59(e).

To the extent the Court construes the motion as a motion to
amend the complaint, it is denied without prejudice.

The

proposed amended complaint consists of 97 lengthy paragraphs
across 39 pages beginning with Plaintiff’s birth in 1980,
proceeding through his criminal prosecution in 2010, and
culminating with his itemized list of disagreements with the
Bureau of Prisons dating back to 2011.

In short, the proposed

amended complaint fails to satisfy the Rule 8(a)(2) requirement
that a complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief” or the
Rule 8(d)(1) requirement that “[e]ach allegation must be simple,
concise, and direct.”

Fed. R. Civ. P. 8(a), (d).

See also

Williams v. Wetzel, 776 F. App'x 49, 49–50 (3d Cir. 2019) (“The
Complaint is a sprawling work that defies Rule 8(a)(2)’s call
for ‘a short and plain statement of the claim [or claims]
showing that the pleader is entitled to relief.’” (alteration in
original)); Reardon v. New Jersey, No. 17-5868, 2018 WL 4964548,
at *3 (D.N.J. Oct. 15, 2018) (denying motion to amend as futile
where proposed amended complaint failed to satisfy “short and
plain” requirement).
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Adding to the futility of permitting the proposed amended
complaint to proceed is the fact that many of the alleged claims
are barred by the statute of limitations for Bivens claims. 1

“A

Bivens claim is ‘characterized as a personal-injury claim and
thus is governed by the applicable state’s statute of
limitations for personal-injury claims.’”

DePack v. Gilroy, 764

F. App'x 249, 251 (3d Cir. 2019) (quoting Dique v. N.J. State
Police, 603 F.3d 181, 185 (3d Cir. 2010)).

New Jersey’s statute

of limitations on personal injury actions is two years.

N.J.S.A

2A:14-2(a).
“Claims generally accrue, and the statute of limitations
generally begins to run, when the plaintiff knew or should have
known of the injury on which the claim is based.”
F. App'x at 251.

DePack, 764

Plaintiff’s original complaint was submitted

on December 30, 2016.

Plaintiff alleges that Defendants

retaliated against him and interfered with his mail; he would
have known he was injured based on these alleged actions at the
time they occurred.

Therefore, any claims that accrued before

December 30, 2014 are barred by the statute of limitations.
Plaintiff does not reach 2015 until paragraph 40 of his proposed

1

“Although the running of the statute of limitations is
ordinarily an affirmative defense, where that defense is obvious
from the face of the complaint and no development of the record
is necessary, a court may dismiss a time-barred complaint sua
sponte . . . for failure to state a claim.” Ostuni v. Wa Wa’s
Mart, 532 F. App’x 110, 111–12 (3d Cir. 2013) (per curiam).
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amended complaint, making much of his proposed amended complaint
subject to dismissal as barred by the statute of limitations.
As it would be futile to permit the proposed amended
complaint to proceed, the Court denies the motion to amend.
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

In the

interests of justice, the Court will grant Plaintiff time to
file a second proposed amended complaint.

The proposed second

amended complaint must be filed within 45 days of this opinion
and order, and it shall be subject to this Court’s screening
under § 1915.

In the meantime, the Court shall administratively

terminate the pending motion to dismiss the original complaint.
ECF No. 33.

The Court shall reinstate the motion to dismiss in

the event Plaintiff does not submit a proposed second amended
complaint or if the second amended complaint does not pass the
Court’s § 1915 screening.
IV. CONCLUSION
For the reasons set forth above, the Motion for
Reconsideration or, in the alternative, to amend is denied
without prejudice.
terminated.

The motion to dismiss is administratively

An appropriate Order follows.

Dated: December 9, 2019
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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