BANDA v. CORNIEL et al

Filing 74

MEMORANDUM OPINION. Signed by Judge Esther Salas on 12/1/16. (DD, ) N/M

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

________________________
JOHN BANDA,
Plaintiff,
v.
Y. CORNIEL, et al.,
Defendants.

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Civil Action No. 13-4240 (ES)

MEMORANDUM OPINION

________________________:
IT APPEARING THAT:
1. On July 4, 2013, Plaintiff John Banda (“Plaintiff”), who is involuntarily committed
under the Sexually Violent Predator Act (“SVPA”), N.J.S.A. 30:4–27.24, et seq., filed this civil
rights action, pursuant to 42 U.S.C. § 1983, against Defendants Corniel, Main, Adams, Spanguolo,
Ottino, Bergen, VanPelt, Calabrese, McBride, Mitchell, Canete, Payne, Cahill, Burnett, Roth,
Burns, Feldman, Qualis, Tarulli, Smith, Brown, Chiappetta, Stokes, Brickhouse, McAllister,
Siddigo, and Hughes (collectively, “Defendants”). (D.E. No. 1, Complaint (“Compl.”)).
2.

In his Complaint, Plaintiff alleged that Defendants engaged in unconstitutional

retaliation against Plaintiff when they placed him on Program MAP,1 thus stripping him of his job,
his television, and his ability to receive packages from outside vendors, after Plaintiff filed a
grievance using abusive language. (Id. at 7).

As explained in this Court’s previous Opinion and Order, Modified Activities Program (“MAP”)
is a program implemented by the Department of Corrections and the Department of Human
Services in order to stabilize disruptive or dangerous behaviors. (D.E. No. 63 at 2 n.2). MAP
consists of four levels: program, wing, tier, and room in ascending order of seriousness. (Id.).
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3. On March 29, 2016, the Court granted a motion filed by Defendants and dismissed
Plaintiff’s Complaint without prejudice. (See D.E. Nos. 63 & 64). The Court found that Plaintiff
had failed to allege any personal involvement or actual knowledge by Defendants Adams,
Spanguolo, Ottino, Bergen, Van Pelt, Calabrese, McBride, Mitchell, Canete, Payne, Cahill,
Burnett, Roth, Burns, Feldmann, Qualis, Tarulli, Smith, and Brown. (See D.E. No. 63 at 4). The
Court further found that although Plaintiff had properly alleged personal involvement on the part
of Defendants Chiapetta, Stokes, Brickhouse, Main and Corniel, he failed to allege a claim for
retaliation because he was not subjected to any “adverse action.” (Id. at 6 (“In order to rise to the
level of an adverse action, a punishment must be sufficient to deter a person of ordinary firmness
from exercising his constitutional rights.”) (internal citations and quotations marks omitted)).
4. On April 5, 2016, Plaintiff filed a Motion for Reconsideration. (See D.E. No. 65
(“Mot.”)). In his Motion, Plaintiff alleges that the Defendants’ Motion to Dismiss contained a
number of “false statements” which this Court “relied upon as being truths.” (Mot. at 1). The
purported “false statements” are as follows:


Defendants state that the Complaint is filed against employees
of the Department of Corrections. Plaintiff argues that they are
employees of the Department of Human Services.



Defendants state that there is probable cause to believe that
Plaintiff is a Sexually Violent Predator. Plaintiff argues that
there was no probable cause hearing to determine that fact.



Defendants state that despite counseling, Plaintiff has continued
to utilize the grievance system inappropriately. Plaintiff alleges
that there was no such counseling.



Defendants state that Plaintiff utilizes abusive language towards
staff members in his grievance forms. Plaintiff alleges that the
grievances do not contain such language.

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

Defendants would allegedly permit Plaintiff to work if he
entered into a behavioral contract, which Plaintiff argues is
unconstitutional.



Defendants argue that they are entitled to qualified immunity.
Plaintiff objects because “they are not being sued in their
Official Capacity, and are being sued in their Personal Capacity
which means that this Pro Se Plaintiff is seeking payment from
the listed Defendant’s personal assets.”



Defendants state that Plaintiff has been convicted of a sexually
violent offense. Plaintiff argues that he has not.

(Mot. 2-3).
5. “A motion for reconsideration is a device of limited utility.” Woodson v. Unknown
Agents of Unknown Agency, No. 14-7033, 2015 WL 71156, at *2 (D.N.J. Jan. 6, 2015). “The
purpose of a motion for reconsideration . . . is to correct manifest errors of law or fact or to present
newly discovered evidence.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985))
(internal quotation marks omitted). As such, a motion for reconsideration may be granted only
upon the showing of one of the following grounds: “(1) an intervening change in the controlling
law; (2) the availability of new evidence that was not available when the court granted the motion
. . . ; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Id. “To
support reargument, a moving party must show that dispositive factual matters or controlling
decisions of law were overlooked by the court in reaching its prior decision.” Assisted Living
Assocs. of Moorestown, L.L.C. v. Moorestown Twp., 996 F. Supp. 409, 442 (D.N.J. 1998). By
contrast, mere disagreement with the district court’s decision is not an appropriate ground for a
motion for reconsideration; such disagreement should be raised through the appellate process. Id.
(citing Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 859 n.8 (D.N.J. 1992)); see also

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Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001) (holding that a motion for
reconsideration may not be used to reargue matters already argued and disposed of by the court).
6. Here, there has been no intervening change in the controlling law, there is no new
evidence that was not available when the court granted the motion to dismiss, and there is no need
to correct a clear error of law or fact or to prevent manifest injustice. Rather, the Court found that
Plaintiff did not state a claim for retaliation because Plaintiff had not “suffered an adverse action
sufficient to deter a prisoner of ordinary firmness from exercising his constitutional rights.” (D.E.
No. 63 at 7). The allegedly “false statements” which Plaintiff identifies in his Motion are irrelevant
to the Court’s conclusion and certainly do not warrant granting reconsideration. See Champion
Labs., Inc. v. Metex Corp., 677 F. Supp. 2d 748, 750 (D.N.J. 2010) (citing United States v.
Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999) (“Only where the court has
overlooked matters that, if considered by the court, might reasonably have resulted in a different
legal conclusion, will it entertain such a motion”)). And, to the extent Plaintiff simply disagrees
with this Court’s decision, that is not a ground for reconsideration. See Assisted Living Assocs. of
Moorestown, L.L.C., 996 F. Supp. 409 at 442.
7. For the reasons stated above, the Court DENIES Plaintiff’s Motion for Reconsideration.
An appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.

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