PARKER v. UNITED STATES OF AMERICA et al

Filing 41

OPINION. Signed by Judge Noel L. Hillman on 5/4/2020. (rss, )

Case 1:18-cv-08674-NLH-JS Document 41 Filed 05/04/20 Page 1 of 13 PageID: 401

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
BENJAMIN PARKER,
:
:
Plaintiff,
:
Civ. No. 18-8674 (NLH-JS)
:
v.
:
OPINION
:
UNITED STATES OF AMERICA,
:
et al.,
:
Defendants.
:
______________________________:
APPEARANCES:
Philip J. Cohen, Esq.
Kamensky-Cohen & Associates
194 South Broad Street
Trenton, NJ 08608
Patrick J. Whalen, Esq.
109 S. Warren Street
PO Box 23653
Trenton, NJ 08608
Attorneys for Plaintiff
Craig Carpenito, United States Attorney
Kristin Lynn Vassallo, Assistant United States Attorney
Office of the U.S. Attorney
District Of New Jersey
970 Broad Street
Newark, NJ 07102
Attorneys for Defendants
HILLMAN, District Judge
This matter comes before the Court on a motion filed by
Defendant United States seeking reconsideration of the Court’s
order denying in part its motion to dismiss.

ECF No. 30.

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Plaintiff Benjamin Parker opposes the motion.

ECF No. 32.

For

the following reasons, the Motion is granted in part.
BACKGROUND
Plaintiff Benjamin Parker brought this civil action under
the Federal Tort Claims Act (“FTCA”), alleging that he was
assaulted by an unknown inmate or inmates while he was
incarcerated at the Federal Correctional Institution in Fort
Dix, New Jersey, and that this attack occurred as a result of
the negligence on the part of the Bureau of Prisons (“BOP”) and
its employees.

Plaintiff alleges that the employees were

negligent in creating the conditions that led to his assault
because (1) certain actions may have resulted in the perception
that Plaintiff was cooperating with prison officials in an
investigation akin to being a “snitch”; (2) they created
dangerous conditions by leaving loose cinder blocks and other
debris in the second floor bathroom of Plaintiff’s housing unit;
and (3) staffing was insufficient to prevent the attack on
Plaintiff.

See ECF No. 1.

At the time of the incident, Plaintiff was incarcerated at
FCI Fort Dix and housed in the East Compound in Unit 5741 (the
“Unit”), containing approximately 300 inmates.

Id. ¶¶ 18-19.

Generally, only one corrections officer was assigned to be on
duty and that officer was responsible for monitoring and

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supervising Unit 5741.

The corrections officer’s office was

located on the first floor of the Unit.

Id. ¶ 20.

Plaintiff was housed on the second floor of the Unit in a
12-person room with a door that did not lock.

Id. ¶ 21.

There

was a large bathroom on that second floor that was left in a
constant state of disrepair.

Id. ¶ 22.

According to the

complaint, BOP employees routinely removed cinder blocks from
the Bathroom walls and shower stalls in search of contraband on
a near weekly basis.

Id. ¶ 23.

Afterwards, they would leave

behind a pile of cinder blocks and other construction debris
unattended and accessible to all inmates for days at a time.
Id. ¶¶ 24-25.

Plaintiff alleges that the cinder blocks and

debris created an obvious, known, and plainly visible risk and
danger to the inmates housed at in the Unit.

Id. ¶ 26.

He

alleges that by creating this debris pile, the federal employees
provided some of the violent and dangerous inmates at the Fort
Dix with weapons to use against other inmates with whom they had
disagreements or confrontations, such as Plaintiff.

Id. ¶ 27.

On September 6, 2015, at approximately 10:00 a.m., a
Defendants broadcasted a message over the public address system
instructing Plaintiff to report to Special Investigative
Services (“SIS”) Lieutenant Anderson’s office.

Id. ¶ 31.

Lieutenant Anderson brought Plaintiff into the SIS Office to
interview him regarding an alleged extensive gambling ring
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involving several inmates at FCI Fort Dix.

Id. ¶ 32.

Plaintiff

explained that he was not involved in that gambling operation,
knew next to nothing about it, and had no information to provide
to the investigation.

Id. ¶¶ 33, 36.

Another inmate had reported the matter to BOP employees and
had allegedly falsely identified Plaintiff as being the
“enforcer” for the gambling ring.

Id. ¶¶ 37-38.

This inmate

had been threatened with violence by the inmates who were
operating the ring and had accumulated a significant gambling
debt.

Id. ¶ 37.

According to Plaintiff, this false tip or

fabrication was the reason Defendants wanted to interview
Plaintiff.

Id. ¶ 39.

At some point after this first interview,

Defendants “revealed, disclosed, communicated, advertised,
represented, published, reported and/or displayed, to other
inmates housed at the Fort Dix Prison, that Plaintiff was being
interviewed regarding that alleged gambling ring.”

Id. ¶ 43.

Ten days later, on Wednesday, September 16, 2015, SIS Agent
Officer Virgillo escorted Plaintiff from Unit 5741 to the SIS
Office.

Id. ¶ 45.

Plaintiff was questioned about the gambling

operation again, and Plaintiff again explained that he was not
involved.

Id. ¶ 46.

Plaintiff alleges that the BOP employees

knew or should have known that the inmates running the ring were
dangerous and had already threatened physical harm to other
inmates, including the inmate who, he alleges, falsely
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implicated him.

Id. ¶ 41.

Plaintiff describes their actions,

e.g., announcing over the loudspeaker that Plaintiff had to
report to SIS and having SIS officers escort him around the
Unit, as putting a “target” on his back and inviting an
unjustified and unwarranted retaliatory attack on Plaintiff.
Two days later on September 18, 2015, Plaintiff was
attacked by one or more inmates.

Id. ¶ 48.

Plaintiff was

struck multiple times in the head with a blunt object, which
Plaintiff alleges was a cinder block or some other piece of
construction debris that BOP staff had left in the bathroom.
Id. ¶ 49.

According to the Complaint, the assault occurred

between 6:00 a.m. and 6:15 a.m. when Officer LaTasha Rodgers was
on duty in the Unit.

Id. ¶¶ 50, 53-54.

Plaintiff sustained

significant, permanent injuries including brain damage, a
posttraumatic epileptic episode, severely broken facial bones,
permanent loss of vision, smell, and taste, and permanent bodily
pain and discomfort.

Id. ¶ 52.

Plaintiff filed this complaint asserting an FTCA claim
against the United States, the BOP, and several individual
officers.

ECF No. 1.

On June 27, 2019, the Court granted in

part a motion to dismiss the complaint.

ECF Nos. 27 & 28.

It

dismissed all defendants except the United States because the
United States is the only proper defendant in an FTCA action.
It denied the motion to dismiss to the extent the United States
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argued Plaintiff failed to exhaust his administrative remedies
and that its actions fell within the discretionary function
exception.
The United States now moves for reconsideration of the
portion of the Court’s order denying its motion to dismiss.
No. 30.

ECF

It argues the Court overlooked its arguments concerning

the discretionary function exception and the dismissal of
Plaintiff’s claims under Federal Rule of Civil Procedure
12(b)(6).
STANDARD OF REVIEW
Pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure and Local Civil Rule 7.1(i), a motion for
reconsideration must be based on one of three grounds: (1) an
intervening change in controlling law, (2) new evidence not
previously available, or (3) a clear error of law or manifest
injustice.

N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d

1194, 1218 (3d Cir. 1995).

Generally, a motion for

reconsideration is intended “to correct manifest errors of law
or fact or to present newly discovered evidence.”
v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).

Harsco Corp.
But

“[r]econsideration is an extraordinary remedy that is granted
very sparingly.”

Brackett v. Ashcroft, 2003 U.S. Dist. LEXIS

21312, at *2 (D.N.J. Oct. 7, 2003) (internal citations omitted);
see also L. Civ. R. 7.1(i), cmt. 6(d).
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A motion for reconsideration may be granted only if there
is a dispositive factual or legal matter that was presented but
not considered that would have reasonably resulted in a
different conclusion by the court.

White v. City of Trenton,

848 F. Supp. 2d 497, 500 (D.N.J. 2012).

Mere disagreement with

a court’s decision should be raised through the appellate
process and is thus inappropriate on a motion for
reconsideration.

United States v. Compaction Sys. Corp., 88 F.

Supp. 2d 339, 345 (D.N.J. 1999).
DISCUSSION
The United States argues the Court overlooked its arguments
on “the defendants’ discretionary function arguments concerning
either the investigative or supervisory conduct alleged in the
complaint.”

ECF No. 30-2 at 15.

It also argues the Court did

not address its arguments under Federal Rule of Civil Procedure
12(b)(6) regarding Plaintiff’s claims for negligent hiring,
negligent retention, negligent training, negligent supervision,
negligent investigation, and tortious interference with
prospective economic opportunity.

As it appears the Rule

12(b)(6) arguments were inadvertently not addressed in the
Court’s prior opinion, the Court will grant the motion for
reconsideration on the Rule 12(b)(6) argument only. 1

1

“The United States Court of Appeals for the Third Circuit
guided that a litigant's motion for reconsideration should be
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A.

Rule 12(b)(6)

The United States argues Plaintiff’s claims for negligent
hiring, negligent retention, negligent training, negligent
supervision, negligent investigation, and tortious interference
with prospective economic opportunity should be dismissed for
failure to state a claim.

ECF No. 12-8 at 34.

It argues New

Jersey does not recognize a “negligent investigation” tort and
that the complaint does not contain facts to support the other
negligence claims.

Id. at 34-35.

The Court will dismiss the

tortious interference claim but permit the others to proceed.
The Court declines to dismiss the negligent investigation
allegation at this time.

The Supreme Court of New Jersey has

only rejected a “new cause of action for negligent investigation
[when it is used] as a surrogate for a traditional malicious
prosecution claim.”

Brunson v. Affinity Fed. Credit Union, 972

A.2d 1112, 1125 (N.J. 2009); see also Drisco v. City of
Elizabeth, No. 03-397, 2010 WL 1253890, at *14 (D.N.J. Mar. 23,
2010) (“New Jersey law does not recognize ‘improper
investigation’ as an independent cause of action in a malicious

deemed ‘granted’ when the court (the decision of which the
litigant is seeking a reconsideration of) addresses the merits—
rather than the mere procedural propriety or lack thereof—of
that motion.” In re Telfair, 745 F. Supp. 2d 536, 538 n.1
(D.N.J. 2010), aff'd in part, vacated in part sub nom. Telfair
v. Office of U.S. Attorney, 443 F. App'x 674 (3d Cir. 2011)
(citing Pena–Ruiz v. Solorzano, 281 F. App’x 110, 111, n.1 (3d
Cir. 2008)).
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prosecution action . . . .”).

Plaintiff is not attempting to

evade the requirements of a malicious prosecution claim by
alleging negligence instead; therefore, the Court sees no reason
not to apply the general requirements for a negligence action:
“[i]n order to sustain a common law cause of action in
negligence, a plaintiff must prove four core elements: ‘(1) [a]
duty of care, (2) [a] breach of [that] duty, (3) proximate
cause, and (4) actual damages [.]’”

Polzo v. Cty. of Essex, 960

A.2d 375, 384 (N.J. 2008) (quoting Weinberg v. Dinger, 524 A.2d
366, 373 (N.J. 1987)) (alterations in original).
Plaintiff was in the custody of the United States at the
time of the events leading up to his injury.

“‘The Bureau of

Prisons . . . shall — (2) . . . provide for the safekeeping,
care and subsistence . . . (3) provide for the protection . . .
of all persons charged with or convicted of offenses against the
United States.’”

Jones v. United States, 91 F.3d 623, 624 (3d

Cir. 1996) (quoting 18 U.S.C. § 4042(a)(2)-(3)) (omissions in
original).

It is certainly true that the BOP must be able to

conduct, and has a duty to conduct, investigations targeting
illegal conduct and breach of institutional rules without the
courts second guessing a particular method or course of conduct.
Nor does an inmate have a right to challenge such ordinary
discretionary decisions when they are reasonably undertaken or
be immune from scrutiny even if actually innocent.
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But

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accepting Plaintiff’s factual allegations as true and giving
Plaintiff the benefit of all reasonable inferences for purposes
of Rule 12(b)(6), it is plausible that the unique manner in
which this particular investigation was conducted unnecessarily
put Plaintiff in harm’s way.
As alleged, by announcing over the loud speaker that
Plaintiff had to report to SIS, escorting Plaintiff around the
Unit with identifiable SIS officers, re-interviewing him under
similar circumstances, and revealing Plaintiff’s SIS interviews
to other inmates, Defendants arguably broadcast to everyone
watching and listening that Plaintiff was a “snitch” cooperating
with SIS.

Whether this particular manner of conducting an SIS

investigation under the unique circumstances of this case
ultimately constitutes a breach of duty or caused Plaintiff’s
injuries, or is vulnerable to a complete defense based on facts
outside the pleadings, is a question of fact, or mixed question
of fact and law, not suitable for resolution on a motion to
dismiss.

Under the facts as pled, the Court deems the claim

plausible and will permit the claim to go forward.
The United States also claims that Plaintiff has failed to
state a claim for negligent hiring, negligent retention,
negligent training, and negligent supervision because he did not
identify the specific employees.

ECF No. 12-8 at 35.

The

complaint alleges that “[o]n or about September 6, 2015,
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Defendants, Lt. Anderson, Officer Vigerallo, and/or John/Jane
Does #1-10, negligently

. . . disclosed, communicated,

advertised, represented, published, reported and/or displayed,
to other inmates housed at the Fort Dix Prison, that Plaintiff
was being interviewed regarding that alleged gambling ring.”
ECF No. 1 ¶ 43.

Plaintiff also alleges Officer Rodgers was

responsible for monitoring Unit 5741 but failed to do so, “and,
as a result, Plaintiff was violently attacked.”

Id. ¶ 54.

A

reasonable inference from the facts alleged in the complaint is
that the employees identified by Plaintiff, including the John
Doe employees, are the employees connected to Plaintiff’s
negligent hiring, negligent retention, negligent training, and
negligent supervision claims.
The Court will dismiss Plaintiff’s tortious interference
claim, however.
Under New Jersey law, to properly state a claim for
tortious interference with prospective economic benefit,
a party must plead the following elements: (1) it had a
reasonable expectation of an economic benefit; (2) the
non-movant’s knowledge of that expectancy; (3) wrongful,
intentional interference with that expectancy; (4) the
reasonable probability that the claimant would have
received the anticipated economic benefit, but for the
interference; and (5) damages resulting from such
interference.
Hong Kong Ibesttouch Tech. Co. v. iDistribute LLC, No. 17-2441,
2018 WL 2427128, at *3 (D.N.J. May 30, 2018).

Plaintiff alleges

that “[a]s a further result of the Defendants’ negligence and

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misconduct described above, Plaintiff is disabled and otherwise
was severely limited in his ability to obtain gainful employment
due to the aforementioned injuries sustained.”
No further information is in the complaint.

ECF No. 1 ¶ 62.

The Court will

dismiss this claim without prejudice as Plaintiff may be able to
amend the complaint with the facts necessary to state a claim.
B.

Discretionary Function

The United States also asks the Court to reconsider its
decision on the discretionary function exception to the waiver
of sovereign immunity contained within the FTCA.
Court overlooked some of its arguments.

It argues the

Because the Court

reviewed and addressed all of the discretionary function
arguments in its prior opinion, the Court declines to reconsider
this argument.
The United States asserts that the Court did not address
the arguments that the discretionary function exception applies
to Plaintiff’s claims concerning the investigative and
supervisory conduct.

ECF No. 30-2 at 15.

In its prior opinion,

the Court recognized that the United States argued that
“Plaintiff may not assert any of his claims against it because
each category of alleged conduct is a discretionary government
function that may not serve as a basis for a claim under the
FTCA.”

ECF No. 27 at 17.

It then declined to “decide the

application of the exception” due to “the limited record before
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it[.]”

Id. at 18.

The Court did not “overlook” the United

States’ arguments merely because it disagrees with the outcome.
Disagreement is not an appropriate basis for reconsideration.
See Qureshi v. AG United States, 677 F. App’x 757, 763 (3d Cir.
2017) (“A motion to reconsider must be based on errors of fact
or law; mere disagreement with the outcome is not sufficient.”);
see also United States v. Compaction Sys. Corp., 88 F. Supp. 2d
339, 345 (D.N.J. 1999).

The United States has not met the

standard for reconsideration for the discretionary function
argument.
CONCLUSION
For the reasons set forth above, the Motion for
Reconsideration is granted in part.

Plaintiff’s tortious

interference claim is dismissed without prejudice.
12(b)(6).

The remainder of the motion is denied.

Fed. R. Civ.
An

appropriate Order follows.

Dated: May 4, 2020
At Camden, New Jersey

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

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