MCGILL v. LANIGAN

Filing 53

OPINION/ORDER denying 50 Motion to Alter Judgment; that the Clerk of the Court shall close this matter; that the Clerk of the Court mail a copy of the Opinion and Order to Plaintiff by regular mail and by certified mail return receipt. Signed by Judge John Michael Vazquez on 4/13/18. (DD, ) N/M

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN W. MCGILL,
Plaintiff
Civil Action No. 13-73 86 (JMV)
V.

GARY LANIGAN,

OPINION AND ORDER

Defendant.

John Michael Vazguez, U.S.D.J.

This matter comes before the Court by way of a motion for reconsideration by Plaintiff
John W. McGill (“Plaintiff’ or “McGill”). D.E. 50. Plaintiff objects to the Court’s October 3,
2017 Opinion and Order granting for summary judgment for Defendant Gary Lanigan
(“Defendant” or “Lanigan”). D.E. 46, 47. Defendant filed a brief in opposition. D.E. 52. The
Court reviewed the submissions in support and in opposition, and considered the motion without
oral argument pursuant to fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated
below, Plaintiffs motion for reconsideration is DENIED.
I.

BACKGROUND

In his suit, Plaintiff claimed that conditions in East Jersey State Prison caused him to
contract Bell’s palsy. In granting Defendant’s motion for summary judgment, the Court found that
Plaintiff failed to raise any issue of material fact regarding the cause of his Bell’s palsy because he
could not identify credible evidence as to the cause of his condition. D.E. 46 at 15 (finding that

“Plaintiffs conjecture about the potential causes of his Bell’s palsy is not enough to show that
there is a genuine issue of material fact as to causation”).
Plaintiff ified the instant motion on November 2, 2017. D.E. 50 (“P1. Motion”). Plaintiff
stylizes his motion as a “Motion to Alter or Amend the Judgment” pursuant to Rule 59(e). See P1.
Motion at 2; 50-1 (“P1. Br.”). The Court issued a text order on December 18, 2017 stating, in part,
that “{i]n light of Plaintiffs status as a pro se litigant, the Court shall construe Plaintiffs
submission as a motion for reconsideration.” D.E. 51; see Gonzalez v. Crosby, 545 U.S. 524, 527
(2005) (finding that “[a]lthough the title “Motion to Alter or Amend Judgment” suggests that
petitioner was relying on Federal Rule of Civil Procedure 59(e), the substance of the motion made
clear that petitioner sought relief under Rule 60(b)(6)”).

Accordingly, the Court considers

Plaintiffs motion as a motion for reconsideration under Local Civil Rule 7.1(i).
Plaintiff argues that the Court’s judgment should be altered on the following grounds: (1)
Plaintiff was not provided “pro bono counsel,” (2) the lack of counsel “was material to the outcome
of this case,” (3) the Court should have informed Plaintiff that he was responsible for procuring an
expert to support his claims, (4) Defendant failed to disclose discoverable material,1 and (5) the
existence of newly discovered evidence. P1. Motion at 2-6.
II.

LEGAL STANDARD
A. Motion for Reconsideration

In the District of New Jersey, motions for reconsideration can be made pursuant to Local
Civil Rule 7.1(i). The rule provides that such motions must be made within fourteen days of the

‘The Court notes that Plaintiff mentions in his motion that he was “not satisfied with the
defendant’s response to his request for discovery” and planned to request additional discovery.
P1. Motion at 4. However, Plaintiff does not substantively support this argument in his brief.
See P1. Br. In any event, Plaintiffs claim that he planned to ask for additional discovery is not a
valid ground for reconsideration under Local Civil Rule 7.1(i).
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entry of an order. Plaintiff did not comply with this time requirement. Nevertheless, the Court
will consider the motion in light of Plaintiffs pro se status.
Substantively, a motion for reconsideration is viable when one of three scenarios is present:
(1) an intervening change in the controlling law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or prevent manifest injustice. Carmichael
v. Everson, No. 03-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004) (citations omitted).
Allowing a motion for reconsideration to go forward is an “extraordinary remedy,” to be granted
“sparingly.” NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)

(citations omitted).
A motion for reconsideration does not entitle a party to a second bite at the apple.
Therefore, a motion for reconsideration is inappropriate when a party merely disagrees with a
court’s ruling or when a party simply wishes to re-argue or re-hash its original motion. Sch.
Specialty, Inc. v. ferrentino, No. 14-4507, 2015 WL 4602995, at *23 (D.N.J. July 30, 2015); see
also florham Park Chevron, Inc. v. Chevron U.S.A., 680 F. Supp. 159, 162 (D.N.J. 1988).

Moreover, a motion for reconsideration is not an opportunity to raise matters that could have been
raised before the original decision was reached. Bowers v. NCAA, 130 F. $upp. 2d 610, 613 (D.N.J.
2001).
III.

LEGAL ANALYSIS
A. Plaintiff’s Lack of Counsel

Plaintiff first argues that he should have been provided counsel and that his lack of counsel
was material to the unsuccessful outcome of his case. Relatedly, Plaintiff contends that the Court
should have either provided an expert or alerted Plaintiff that an expert was necessary for his
claims.

3

“In civil cases, neither the Constitution nor any statute gives civil litigants the right to
appointed counsel.” Lozada v. Casale, No. 13-2090, 2013 WL 6635846, at *1 (D.N.J. Dec. 16,
2013) (citing Farham v. Johnson, 126 F.3d 454, 456—57 (3d Cir. 1997)). “Nevertheless, Congress
has granted district courts statutory authority to ‘request’ appointed counsel for indigent civil
litigants.” Montgomery v. Finchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing 28 U.S.C.
1915(e)(1)).

The Third Circuit has “interpreted

§

§ 1915 as affording district courts ‘broad

discretion’ to determine whether appointment of counsel in a civil case would be appropriate.”
Montgomery, 294 F.3d at 498 (citing Tabron v. Grace, 6 f.3d 147, 153 (3d Cir. 1993)).

In Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), the Third Circuit provided a list of criteria
for district courts to weigh when considering whether the appointment of counsel for an indigent
litigant is appropriate. As a threshold inquiry, a district court must find that the claimant’s case
has some arguable merit in fact and law. Id. at 155; see also Montgomery v. Finchak, 294 F.3d
492, 498-99 (3d Cir. 2002). Once the court finds that a plaintiff meets that threshold, the court
will consider six additional factors.2 Montgomery, 294 f.3d at 499 (citing Tabron, 6 F.3d at 15556). As explained below, Plaintiff failed to meet the threshold requirement.
Plaintiffs previous request for counsel was denied by Magistrate Judge Mannion on
November 11, 2015 afier a thorough examination of the Tabron factors. D.E. 20. Plaintiff did not

2

These factors are:
1. the plaintiffs ability to present his or her own case;
2. the difficulty of the particular legal issues;
3. the degree to which factual investigation will be necessary and
the ability of the plaintiff to pursue investigation;
4. the plaintiffs capacity to retain counsel on his or her own behalf;
5. the extent to which a case is likely to turn on credibility
determinations, and;
6. whether the case will require testimony from expert witnesses.
Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-56).
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seek reconsideration of Judge Mannion’s decision. The Court did not address appointment of an
attorney or an expert in the Court’s October 3, 2017 Opinion and Order because the issue had not
been raised by Plaintiff. Nevertheless, because the Plaintiff was proceeding pro se, the Court
undertook independent research to determine whether the appointment of counsel or an expert
would have been appropriate.
The Court concluded that Plaintiff did not meet the threshold Tabron requirement that he
bring an arguably meritorious claim. Plaintiffs Section 1983 claims required a showing of actual
and proximate causation i.e. that the conditions of his detention in East Jersey State Prison caused
—

his Bell’s palsy. The Court engaged in research, outside of the motion papers, and concluded that
the unanimous view of the medical community is that there is no known cause of Bell’s palsy.3 In
other words, appointing either counsel or, more importantly, an expert, would not have aided
Plaintiff because it does not appear that the medical community is aware of the cause of Bell’s
palsy. If the medical literature had indicated that Bell’s palsy could potentially be caused by the
conditions (including mold) asserted by Plaintiff, the Court would have sua sponte considered the

See, e.g., Bell’s Palsy Fact Sheet, National Institute of Neurological Disorders and Stroke,
available at https ://www.ninds.nih.gov/Disorders/Patient-Caregiver-EducationlFactSheets/Bells-Palsy-Fact-Sheet (last visited Apr. 13, 2018) (“Bell’s palsy occurs when the nerve
that controls the facial muscles is swollen, inflamed, or compressed, resulting in facial weakness
or paralysis. Exactly what causes this damage, however, is unknown.” (emphasis added)); Bell’s
palsy, Mayo Foundation for Medical Education and Research, available at
https ://www.rnayoclinic. org/diseases-conditions/bells-palsy/symptoms-causes/syc-203 70028
(last visited Apr. 13, 2018) (“The exact cause [ofBell’s palsy] is unknown, but it’s believed to be
the result of swelling and inflammation of the nerve that controls the muscles on one side of your
face. It may be a reaction that occurs afier a viral infection.” (emphases added)); Bell’s Palsy,
Johns Hopkins Medicine Health Library, available at https://www.hopkinsmedicine.org/
healthlibrary/conditions/nervoussysterndisorders/bellspalsy8 5 ,P00774 (last visited Apr. 13,
2018) (“The cause ofBell palsy is unknown but is thought to be caused by inflammation
affecting the body’s immune system.” (emphasis added)).
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appointment of counsel and an expert. Yet, the Court could find no support for this conclusion,
and Plaintiff has not pointed to any contrary authority concerning the cause of Bell’s palsy.
In addition, the Court did not have any responsibility to alert Plaintiff that he may need an
expert to support his claims. Nevertheless, Plaintiff was on notice. Judge Mannion indicated to
Plaintiff in his Order denying Plaintiffs request for counsel that “[g]iven the nature of Mr.
McGill’s allegations, it appears likely that his claims would require expert medical testimony to
determine the source and cause of his personal injury.” D.E. 20. More importantly, as described
above, no expert would be able to provide Plaintiff with testimony that his Bell’s palsy was caused
by the specific conditions at East Jersey State Prison because there is no known cause of Bell’s
palsy.
B. New Evidence

Lastly, Plaintiff argues that there is previously unavailable evidence that calls for
reconsideration of the Court’s Opinion and Order. Specifically, Plaintiff claims that on October
1$, 2017, 15 days after the Court’s Opinion and Order,
the plaintiff observed a crew of outside workers removing and
replacing the roof on a building inside of East Jersey State Prison
known as two-wing. Work on this project had been postponed, and
prior to its beginning the plaintiff saw a crew of workers wearing
haz-mat clothing inside of the prison heading in the direction of two
wing. After seeing the haz-mat crew, there was an occasion where
a lieutenant asked the prisoners on two-Up [sic] for volunteers to
remove bags of waste that were stored in the attic of two-wing. It
was shortly after these events that work began on the roof. From
these facts the plaintiff knew the hazardous material crew was there
to eliminate the health risk, and other adverse conditions, on two
wing that posed a threat to the other work crew.... Also the plaintiff
knew the trash the lieutenant asked for volunteers to remove was left
there by the haz-mat crew.
D.E. 50-1 at 5. Plaintiff included allegations of hazardous conditions in his Amended Complaint.
See D.E. 2. In his Amended Complaint, Plaintiff alleged that there were hazardous conditions in
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the dormitory, including black mold, green mold, and pink fungus. Id. at 8-9. He also claimed
that bird feces would enter the dormitory’s living area through a leak in the roof. Id at 9. Plaintiff
claimed that these conditions caused his Bell’s palsy.
“[N]ew evidence,’ for reconsideration purposes, does not refer to evidence that a party
obtains or submits to the court after an adverse ruling. Rather, new evidence in this context means
evidence that a party could not earlier submit to the court because that evidence was not previously
available.” Howard Hess Dental Labs. Inc.

V.

Dentsply Int’l, Inc., 602 F.3d 237, 252 (3d Cir.

2010). Plaintiffs new evidence is similar to the evidence already considered by the Court. More
importantly, Plaintiffs proffered new evidence does not aid Plaintiff in overcoming the reason
summary judgment was granted: proximate causation. Plaintiff will not be able to show causation
with any new evidence unless there is a fundamental change in the medical consensus that there is
no known cause of Bell’s palsy.
For these reasons, Plaintiffs motion for reconsideration is denied.
IV.

CONCLUSION

Accordingly, for the reasons set forth above, and for good cause shown,
IT IS on this 13th day of April, 201$,

ORDERED that Plaintiffs motion for reconsideration (D.E. 50) is DENIED; and it is
further
ORDERED that the Clerk of the Court shall close this matter; and it is further
ORDERED that the Clerk of the Court mail a copy of the Opinion and Order to Plaintiff
by regular mail and by certified mail return receipt.
Dated: April 13, 2018

chaelVazqu,U.J.