STILE v. HOLLINGSWORTH et al

Filing 106

OPINION. Signed by Judge Renee Marie Bumb on 1/29/2021. (tf, )

Case 1:17-cv-02693-RMB-AMD Document 106 Filed 01/29/21 Page 1 of 9 PageID: 745

NOT FOR PUBLICATION

ECF 86

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAMES STILE,
Plaintiff
v.
WARDEN JORDAN HOLLINGSWORTH
et al.,
Defendants

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Civ. Action No. 17-2693(RMB)
OPINION

APPEARANCES:
Francis X. Manning, Esq.
STRADLEY, RONON, STEVENS & YOUNG, LLP
Liberty View
457 Haddonfield Road
Suite 100
Cherry Hill, NJ 08002
Adam Joseph Petitt, Esq.
Joseph William Catuzzi, Esq.
STRADLEY RONON STEVENS & YOUNG LLP
2005 Market Street, Suite 2600
Philadelphia, PA 19103
Samantha Beth Kats, Esq.
STRADLEY RONON STEVENS & YOUNG LLP
Great Valley Corporate Center
30 Valley Stream Parkway
Malvern, PA 19355
On behalf of Plaintiff
Jessica Rose O’Neill, Assistant United States Attorney
Peter Gregory Vizcarrando, Assistant United States Attorney
Office of the U.S. Attorney, District of New Jersey
401 Market Street, 4th FLOOR
P.O. BOX 2098
Camden, NJ 08101
On behalf of Defendants

Case 1:17-cv-02693-RMB-AMD Document 106 Filed 01/29/21 Page 2 of 9 PageID: 746

BUMB, United States District Judge
Plaintiff brought this Bivens and Federal Tort Claim action,
alleging

he

confinement

was
while

subjected

to

unconstitutional

incarcerated

for

two

years

conditions
at

the

of

Federal

Correctional Institution in Fort Dix, New Jersey. This matter comes
before the Court upon Defendants Warden Jordan Hollingsworth and
Warden David Ortiz’s (“Defs”) motion for reconsideration of this
Court’s order granting in part and denying in part their motion to
dismiss Counts I, II and III of Plaintiff’s amended complaint.
(Mot.

for

Reconsideration,

Dkt.

No.

86.)

Plaintiff

opposes

reconsideration. (Pl’s Opp. Brief, Dkt. No. 87.) For the reasons
discussed below, the Court grants reconsideration in part by
denying the qualified immunity defense at the motion to dismiss
stage, and denies reconsideration in part by assuming the existence
of a Bivens claim.
I.

PROCEDURAL HISTORY
Plaintiff initiated this action on April 20, 2017. (Compl.,

ECF No. 1.) This Court reviewed the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(b) and § 1915A. On October 23, 2017, the Court
dismissed certain claims and permitted claims related to the
environmental

conditions

at

FCI

Fort

Dix

against

Wardens

Hollingsworth and Ortiz to proceed, noting that they were subject
to further briefing pursuant to the United States Supreme Court’s
decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). (Opinion and
2

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Order,

ECF

Nos.

4,

5.)

Defendants

moved

for

dismissal

of

Plaintiff’s remaining claims. (First Mot. to Dismiss, ECF No. 29.)
Plaintiff responded with a motion to amend his complaint to state
his constitutional claims as tort claims under the Federal Tort
Claims Act. (Mot. to Amend, ECF No. 32.) Plaintiff was appointed
counsel on March 20, 2019. (Order, ECF No. 42.) After discussions
with the Court, counsel filed an amended complaint on August 13,
2019. (Am. Compl., ECF No. 51.) Upon service of the amended
complaint, Defendants filed a Partial Motion to Dismiss Counts I,
II and III of Plaintiff’s Amended Complaint. (“Defs.’ Partial Mot.
to Dismiss,” ECF No. 65.) The Court granted in part and denied in
part the motion to dismiss by Opinion and Order dated June 4, 2020.
(Opinion, Dkt. No. 82; Order, Dkt. No. 83.) Defendants’ motion for
reconsideration followed.
II.

MOTION FOR RECONSIDERATION
A.

Standard of Review

Motions for reconsideration are permitted by Local Civil Rule
7.1(i) for matters which a party “believes the Judge or Magistrate
Judge has overlooked” when it ruled on the motion. Under Federal
Rule of Civil Procedure 59(e), a motion to alter or amend a
judgment, “[t]he purpose of a motion for reconsideration is ‘to
correct

manifest

errors

of

law

or

fact

or

to

present

newly

discovered evidence.’” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d
Cir. 2010) (quoting Max’s Seafood Café ex rel. Lou-Ann, Inc. v.
3

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Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). “A proper Rule 59(e)
motion

therefore

must

rely

on

one

of

three

grounds:

(1)

an

intervening change in controlling law; (2) the availability of new
evidence; or (3) the need to correct clear error of law or prevent
manifest injustice.” Lazaridis, 591 F.3d at 1218 (citing N. River
Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.
1995).
B.

The Parties’ Arguments

Defendants seek reconsideration on two issues; first, whether
it was clear legal error to postpone ruling on the qualified
immunity defense at the motion to dismiss stage; and second,
whether it was clear legal error to assume a Bivens cause of action
before

proceeding

to

the

qualified

immunity

defense

if

the

qualified immunity defense is not granted. (Brief in Supp. of Defs’
Mot. for Reconsideration, Dkt. No. 86-1 at 6.) 1
1.
Defendants

Qualified immunity
submit

that

the

Court

erred

by

postponing

resolution of their qualified immunity defense based on disputed
facts, rather than assuming Plaintiff’s allegations to be true and
determining whether the claim was supported by clearly established
law. (Id. at 10-12.) Defendants contend that while a court may
postpone resolution of qualified immunity based on disputed facts

1

Page citations are to the page numbers assigned by the Court’s
Case Management Electronic Case Files (“CM/ECF.”)
4

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at the summary judgment stage, it is improper to do so at the
motion to dismiss stage. (Id.)
In opposition to Defendants’ motion for reconsideration on
qualified immunity, Plaintiff counters that it is well settled
that the qualified immunity defense may present factual issues
that cannot be resolved at the motion to dismiss stage. (Pl’s Mem.
of Law in Opp. to Defs’ Mot. for Reconsideration, Dkt. No. 87 at
6-7.) Moreover, Plaintiff argues that the Court found Plaintiff
alleged a sufficient factual basis to state a violation of clearly
established rights under the Eighth Amendment. (Id. at 6.)
The Court’s purpose in postponing resolution of the qualified
immunity issue was to permit discovery on Plaintiff’s allegations
regarding his level of exposure to asbestos and contaminated
drinking

water,

defendants’

knowledge

of

this

exposure,

and

Plaintiff’s allegations of the resulting damage to his present and
future

health,

allegations

are

particularly
made

“upon

because
information

many
and

of

Plaintiff’s

belief.”

Making

allegations “upon information and belief” requires a degree of
faith that discovery will provide evidence to support “the belief”,
but Plaintiff has been appointed counsel and the Court relies on
the standard for pleadings set forth in Federal Rule of Civil
Procedure (“FRCP”) 11.
The Third Circuit recently stated that when the practical
effect of a district court’s order is to permit discovery on a
5

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Plaintiff’s claim over the defendant’s assertion of the qualified
immunity defense, the court has denied qualified immunity at the
motion to dismiss stage. Weimer v. Cty. of Fayette, Pennsylvania,
972 F.3d 177, 185 (3d Cir. 2020); see also Howe v. City of
Enterprise,

861

F.3d

1300,

1302

(11th

Cir.

2017)

(denial

of

qualified immunity at the motion to dismiss stage is immediately
appealable
defendant's

even

if

claim

the
to

district

immunity”

court
until

“reserved
a

later

ruling
stage

of

on

a

the

litigation because the “immunity is a right not to be subjected to
litigation beyond the point at which immunity is asserted.”)
Therefore, for the reasons discussed below, the Court will deny
qualified immunity to Defendants at the motion to dismiss stage.
When the allegations in paragraphs 13-38 and 84-104 of the
amended complaint are accepted as true and the Court expects are
being made in compliance with FRCP 11, a reasonable person would
have known it would violate the Eighth Amendment to not take
reasonable steps to abate Plaintiff’s exposure to asbestos and
harmful chemicals in his drinking water that caused damage to his
present and/or future health. The Supreme Court case of Helling v.
McKinney, and the Third Circuit case of Atkinson v. Taylor clearly
establish that a prison official, with deliberate indifference,
exposes an inmate to levels of a toxic substance “that pose an
unreasonable risk of harm to his future health” violates the Eighth
Amendment. Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003)
6

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(citing Helling v. McKinney, 509 U.S. 25 (1993)). See White v.
Pauly, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 (2017) (explaining
that clearly established law, for purposes of qualified immunity,
must make apparent the unlawfulness of the conduct that violates
the Constitution). Although the toxic substance in Atkinson and
Helling was environmental tobacco smoke (“ETS”), a reasonable
person would understand that the same standard applies to the high
level of exposure to harmful chemicals alleged to contaminate
Plaintiff’s

drinking

water

and

Plaintiff’s

daily

exposure

to

breathing in asbestos, because these contaminates at sufficient
levels are widely known to be dangerous to human health. Once
again, it bears repeating that the Court assumes compliance with
Rule 11. Therefore, the Court grants reconsideration of postponing
the qualified immunity issue and denies qualified immunity to
Defendants at the motion to dismiss stage, noting that the issue
may be resurrected at the summary judgment stage.
2.

Existence of a Bivens Cause of Action

Defendants acknowledge that a court may assume the existence
of a Bivens cause of action if it then dismisses the action on
other grounds, such as qualified immunity, but that a court may
not otherwise assume the existence of a cause of action to permit
a

claim

to

proceed.

(Brief

in

Supp.

of

Defs’

Mot.

for

Reconsideration, Dkt. No. 86-1 at 12-14.) Defendants argue that
the issue of whether a Bivens cause of action exists is antecedent
7

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to the qualified immunity defense, and both should be resolved at
early stages in a case. (Id. at 13-15.) Plaintiff maintains that
a court may assume a cause of action exists without dismissing the
claim on another basis because the existence of a cause of action
is not jurisdictional, citing Burks v. Lasker, 441 U.S. 476, n. 5
(1979).

(Pl’s

Mem.

of

Law

in

Opp.

to

Defs’

Mot.

for

Reconsideration, Dkt. No. 87 at 7-8.)
The Court denies reconsideration of its decision to assume
the existence of a Bivens cause of action at the motion to dismiss
stage because Defendants have failed to establish clear error. It
is well settled that “[t]he question whether a cause of action
exists is not a question of jurisdiction, and therefore may be
assumed without being decided.” Burks v. Lasker, 441 U.S. 471, 476
(1979); see also Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir.
2020) (citing Air Courier Conference of Am. v. Am. Postal Workers
Union, 498 U.S. 517, 523 n.3 (1991) (“Whether a cause of action
exists is not a question of jurisdiction....”) While the Court
acknowledges

the

Third

Circuit’s

guidance

that

“threshold

questions are called that for a reason, and it will often be best
to tackle head on whether Bivens provides a remedy, when that is
unsettled” but the language is not mandatory and the issue arose
in Bistrian at the summary judgment stage, after the parties failed
to address it in the district court. Bistrian v. Levi, 912 F.3d
79, 89 (3d Cir. 2018). Defendants are not precluded from arguing,
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in a motion for summary judgment, that the Court should not extend
a Bivens damages remedy in this matter. Based on facts presented
in discovery, Defendants may have additional arguments supporting
their position that special factors counsel hesitation in implying
a Bivens damages remedy here. Particularly where the case involves
an issue of first impression, it may be beneficial to conduct
discovery before making that determination.
V.

CONCLUSION
For

the

reasons

discussed

above,

the

Court

grants

reconsideration in part by denying the qualified immunity defense
at the motion to dismiss stage, and denies reconsideration in part
by assuming the existence of a Bivens claim.

An appropriate Order follows.

Date:

January 29, 2021

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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