BERROA v. SUMNER et al
Filing
14
OPINION. Signed by Judge Noel L. Hillman on 9/28/2018. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
HARRY BERROA,
:
:
Plaintiff,
:
Civ. No. 17-4910 (NLH)(AMD)
:
v.
:
OPINION
:
KITCHEN OFFICER SUMNER and
:
WARDEN ORTIZ,
:
:
Defendants.
:
______________________________:
APPEARANCE:
Harry Berroa, No. 62268-066
FCI - Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Plaintiff Pro se
HILLMAN, District Judge
This matter comes before the Court upon Plaintiff's Motion
for Reconsideration of this Court's Opinion and Order dismissing
his Notice under 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1).
See ECF No. 13.
For the reasons explained below, the Court will
deny reconsideration.
BACKGROUND
Plaintiff filed a “Notice of Intent to File Suit and
Litigation Preservation Request of Video Evidence” (the
“Notice”), docketed as a complaint, on July 5, 2017.
ECF No. 1.
Plaintiff’s Notice is only one page long, and there is only a
single factual allegation:
“On 6/24/2017 AT 11.20 Plaintiff was
in the East side of Fort Dix prison, inside food service ‘30’
receiving his lunch.
While the Plaintiff was exiting the food
line Officer Sumner called the Plaintiff a FAGOT because he
asked why his food was missing meat.”
Notice, ¶ 1.
The
Plaintiff also states in his Notice that, “You [defendants] have
now been served with Notice that will conclude with a law suit
AFTER exhaustion of AVAILABLE remedies have been concluded.”
Notice, ¶ 2.
The Court conducted its sua sponte screening for dismissal
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A because
Plaintiff is proceeding in forma pauperis and is also
incarcerated.
After reviewing the Notice, the Court concluded
that, to extent that the Notice was construed as a Complaint, it
must be dismissed for failure to state a claim upon which relief
may be granted.
ECF No. 11.
Specifically, the Court found that
the one-page notice filed by Plaintiff was intended to be a
litigation hold notice and not a civil action, as the Notice
itself provided that a lawsuit would follow after Plaintiff
exhausts his administrative remedies.
Id. at 3-4.
Because
under the Rules of Civil Procedure there is only one form of
action, the civil action, which may only be commenced by a
complaint, the Court determined that Plaintiff could not
commence a civil action pre-complaint by the Notice, and thus
the Notice must be dismissed.
ECF No. 11 at 4.
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In addition, the Court concluded that the Notice would also
need to be dismissed because it failed to provide sufficient
factual allegations to establish a cognizable legal claim.
Id.
Plaintiff only provided one factual allegation in the Notice,
which, if accepted as true, only establishes that Kitchen
Officer Sumner called Plaintiff a “faggot.”
Id.
Because a
single instance of name-calling does not rise to the level of a
constitutional violation, the Court found that Plaintiff had
failed to state a claim and the Notice (or complaint) would be
dismissed for this reason.
Id. at 4-5.
In the Motion for Reconsideration, Plaintiff argues that
the Court (1) erred by converting his Notice of Intent to Sue
into a complaint; and (2) should reverse the dismissal and
convert the Notice into a Motion for Preliminary Injunction.
ECF No. 13 at 2.
In the Motion, it is clear that Plaintiff
intended his Notice to act as a litigation hold letter, and that
he would like the Court to enter an injunction to preserve the
video evidence of the name-calling incident.
See id. at 2-5.
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
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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. 1
See D.N.J. Loc. R. 7.1.
DISCUSSION
In his Motion for Reconsideration, Plaintiff presents no
argument regarding an intervening change in the controlling law
or the discovery of new evidence.
At best, he argues a
misapplication of the law regarding litigation hold notices.
There is no merit to Plaintiff’s arguments.
Plaintiff cites Bull v. United Parcel Service, Inc., 665
F.3d 68 (3d Cir. 2012), for the proposition that “a direct
‘Notice’ was all that was needed to ‘preserve for specific
reason’” evidence.
Although Bull acknowledged the foreseeable
duty to preserve evidence in light of litigation, it involved a
plaintiff who provided copies but not original documents to the
defendant, which the trial court held was spoliation of evidence
and dismissed plaintiff’s case as a sanction.
1
Id.
The Court of
Petitioner does not specify under which Rule of Civil Procedure
he seeks reconsideration. His Motion, however, is dated
February 5, 2018, and is thus timely under Local Rule 7.1 absent
reference to the application of another rule or statute.
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Appeals for the Third Circuit determined that such dismissal was
an abuse of discretion because no difference existed between the
copies and the original.
Id.
This case has no application to
the instant matter and is not grounds for reconsideration.
Another case cited by Plaintiff involved the denial of a
preliminary injunction to preserve evidence, in which the court
found that an injunction would be unnecessary because the
defendants were already on notice and under a legal obligation
to preserve evidence after the service of the litigation hold
notice.
See Gambino v. Hershberger, No. 17-6800 (4th Cir. 2017)
(“The district court denied the motions [for injunctive relief]
and dismissed the complaint because the Government, once on
notice of the potential lawsuit, was already obligated to
preserve any existing evidence.”).
This authority cited by
Plaintiff simply demonstrates that a federal civil action need
not be commenced in order to issue a litigation hold notice and
that injunctive relief would be inappropriate in light of the
existing duty to preserve evidence.
Plaintiff’s arguments and
cited authority fail to demonstrate any clear error of law that
needs to be corrected, and the Motion must be denied.
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CONCLUSION
For the reasons set forth above, the Motion for
Reconsideration will be denied.
An appropriate Order follows.
Dated: September 28, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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