WILSON v. PIAZZA et al

Filing 30

OPINION filed. Signed by Judge Mary L. Cooper on 9/12/2011. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID WILSON,
Plaintiff,
v.
POLICE OFFICER ANTHONY
PIAZZA, et al.,
Defendants.

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Civil Action No. 10-3356 (MLC)
O P I N I O N

COOPER, District Judge
This matter is before the Court on Plaintiff’s Motion [12]
for Reconsideration of this Court’s Opinion and Order [8, 9]
dismissing with prejudice all claims against Defendant Sgt. Mark
Leopold, entered February 22, 2011, familiarity with which is
presumed.

In brief, Plaintiff alleged that Officer Anthony

Piazza used excessive force in arresting him and that Sgt. Mark
Leopold failed to investigate when Plaintiff told him of Officer
Anthony Piazza’s actions.
As this Court noted previously, “an allegation of a failure
to investigate, without another recognizable constitutional
right, is not sufficient to sustain a section 1983 claim.”

Graw

v. Fantasky, 68 Fed.Appx. 378 (3d Cir. 2003) (citing DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195-96
(1989)); cf. Burnside v. Moser, 138 Fed.Appx. 414, 416 (3d Cir.
2005) (prisoners do not have constitutionally protected right to
prison grievance process); Lewis v. Williams, 2006 WL 538546, *7

(D. Del. 2006) (failure to investigate grievance does not raise
constitutional issue) (collecting cases).

Compare Durmer v.

O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (summary judgment
properly granted to prison warden and state commissioner of
corrections, the only allegation being that they failed to
respond to letters from prisoner complaining of prison doctor’s
treatment decisions).
Here, Plaintiff requests reconsideration by asserting, for
the first time, that a jury “could find” that Sgt. Leopold failed
to investigate in order to protect Officer Piazza’s job.

He

argues that a claim should not be dismissed unless it appears
beyond a doubt that the plaintiff can prove no set of facts
entitling him to relief.
Local Civil Rule 7.1(i) governs motions for reconsideration.
See Bowers v. Nat’l Collegiate Athletic Ass’n, 130 F.Supp.2d 610,
612 (D.N.J. 2001).

It specifies that a separate brief shall be

filed “setting forth concisely the matter or controlling decisions
which the party believes the Judge . . . has overlooked.”

The

standard for reargument is high and reconsideration is to be
granted only sparingly.

See United States v. Jones, 158 F.R.D.

309, 314 (D.N.J. 1994); NL Indus. v. Commercial Union Ins., 935
F.Supp. 513, 515 (D.N.J. 1996).
Ordinarily, a motion for reconsideration may address only
those matters of fact or issues of law which were presented to,

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but not considered by, the court in the course of making the
decision at issue.

See SPIRG v. Monsanto Co., 727 F.Supp. 876,

878 (D.N.J.), aff’d, 891 F.2d 283 (3d Cir. 1989).

Thus, matters

may not be introduced for the first time on a reconsideration
motion.

See, e.g., Resorts Int’l v. Greate Bay Hotel & Casino,

830 F.Supp. 826, 831 (D.N.J. 1992); Egloff v. N.J. Air Nat’l
Guard, 684 F.Supp. 1275, 1279 (D.N.J. 1988).

Absent unusual

circumstances, a court should reject new evidence that was not
presented when the court made the contested decision.
Resorts Int’l, 830 F.Supp. at 831 n.3.

See

Moreover, L.Civ.R. 7.1(i)

does not allow parties to restate arguments that the court has
already considered.

Thus, a difference of opinion with the

court’s decision should be dealt with through the normal
appellate process.

Florham Park Chevron v. Chevron U.S.A., 680

F.Supp. 159, 162 (D.N.J. 1988); see Chicosky v. Presbyterian Med.
Ctr., 979 F.Supp. 316, 318 (D.N.J. 1997); NL Indus., 935 F.Supp.
at 516 (“Reconsideration motions . . . may not be used to relitigate old matters, or to raise arguments or present evidence
that could have been raised prior to the entry of judgment.”).
Furthermore, the court will grant a motion for reconsideration
only if the movant establishes that the court overlooked
“dispositive factual matters or controlling decisions of law.”
See Rouse v. Plantier, 997 F.Supp. 575, 578 (D.N.J. 1998); Starr
v. JCI Data Processing, 767 F.Supp. 633, 635 (D.N.J. 1991).

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Plaintiff has not pointed to any facts or legal authority
that this Court overlooked in rendering its prior Opinion and
Order.
A pro se complaint could previously be dismissed for failure
to state a claim only if it appeared “beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.”
45-46 (1957).

Conley v. Gibson, 355 U.S. 41,

This “no set of facts” rule was abrogated by the

Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do, see Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to
relief above the speculative level ... .
Twombly, 550 U.S. at 555 (citations omitted).

“Specific facts

are not necessary; the statement need only ‘give the defendant
fair notice of what the ... claim is and the grounds upon which
it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted).
This Court previously, and properly, applied this
Twombly/Erickson standard to Plaintiff’s claim against Sgt.
Leopold.

Moreover, even if Plaintiff had alleged that the

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motivation for Sgt. Leopold failing to investigate the allegation
of excessive force were to protect Officer Piazza’s job, that
fact would not rise to the level of a violation of another
recognizable constitutional right that would make failure to
investigate, itself, the violation of a constitutional right.
The Court will deny the motion, and issue an appropriate
order.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:

September 12, 2011

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