United States District Court, D. New Jersey
May 3, 2005.
RAYMOND WATSON, Plaintiff,
C.J. DeROSA, et al., Defendants.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
This matter comes before the Court upon Plaintiff's motion for
reconsideration of this Court's denial of his motion for an order
to cease and desist harassment as well as upon Plaintiff's second
motion for such an order. Also before the Court is the motion of
Defendants to dismiss Plaintiff's Complaint, which is unopposed.
For the reasons stated below, Plaintiff's motions will be denied
and the Court grants Defendants' motion to dismiss. BACKGROUND
Plaintiff pro se, Raymond Watson, brings this civil rights
action pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), alleging that he was
falsely charged with "Insolence Towards a Staff Member" and
"Refusing to Obey an Order of any Staff Member," which resulted,
inter alia, in a three day placement in the Special Housing
Unit ("SHU") on administrative detention; a sixty day loss of
commissary privileges; loss of his personal property and legal
materials; and his ineligibility for privileges including housing
assignments and pay raises. Specifically, Plaintiff alleges that
FCI Fort Dix Lieutenant Corey Kaough violated his civil rights by
allowing Unit Officer Ronald Williams to file an incident report
against him on January 26, 2004, by placing him in SHU and by
instructing an officer to seize his legal papers. Plaintiff also
maintains that Officer Williams violated his civil rights on
January 26, 2004 by falsely accusing Plaintiff of threatening him
on three occasions while assigned to Plaintiff's housing unit; by
selectively prosecuting Plaintiff because Officer Williams
searched Plaintiff's locker at various times; and by
discriminating against him for using the Administrative Remedy
Program. (Compl. at pp. 7-8.) The Bureau of Prisons has no
records of any administrative appeal filed by Plaintiff.
(Declaration of Kisha M. Hebbon, ¶ 5.) Plaintiff filed his Complaint on February 13, 2004. On August
12, 2004, Plaintiff filed a motion for an order to cease and
desist harassment of Plaintiff, which this Court dismissed as
premature on August 19, 2004. Plaintiff filed a motion for
reconsideration of this Court's August 19, 2004 Order on
September 13, 2004 and a second motion for such an order on
January 7, 2005. Defendants filed a motion to dismiss on February
14, 2005. Plaintiff requested an extension of time to file his
opposition to this motion, which the Court granted on March 18,
2005, thereby enlarging the time for Plaintiff to submit a
response until April 18, 2005. Plaintiff, however, has submitted
no such opposition.
Plaintiff's Motion for Reconsideration and Renewed Motion
Local Civil Rule 7.1(i) of the United States District Court,
District of New Jersey, governs the instant motion for
reconsideration. The rule requires that the moving party set
forth the factual matters or controlling legal authority that it
believes this Court overlooked when rendering its initial
decision. L. Civ. R. 7.1(i). Whether to grant reconsideration is
a matter within the district court's discretion, but it should
only be granted where such facts or legal authority were indeed
presented but overlooked. DeLong Corp. v. Raymond Int'l, Inc.,
622 F.2d 1135, 1140 (3d Cir. 1980), overruled on other grounds
by Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); Williams v.
Sullivan, 818 F. Supp. 92, 93 (D.N.J. 1993). The purpose of a
motion for reconsideration "is to correct manifest errors of law
or to present newly discovered evidence." Harsco Corp. v.
Zlotnick, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied,
476 U.S. 1171 (1986). A motion for reconsideration is improper when
it is used solely to ask the court to rethink what it has already
thought through rightly or wrongly. Oritani Savings & Loan
Assoc. v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314
(D.N.J. 1990) (citing Above the Belt v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)), rev'd on other
grounds, 989 F.2d 635 (3d Cir. 1993). Nor is reconsideration
warranted when the moving party simply recapitulates the cases
and arguments considered by the court prior to rendering its
initial decision. Carteret Sav. Bank v. Shushan,
721 F. Supp. 705, 706-07 (D.N.J. 1989).
Plaintiff argues on reconsideration that the Court erroneously
dismissed his motion for an order to cease and desist harassment
because he has indeed "already exhausted all of his
administrative remedies prior to filing the cause of action
herein on 28 May 2004." (Pl.'s Brief at 2.) Plaintiff therefore
renews his motion for an order to cease and desist in this motion
for reconsideration [Docket Item No. 10-1] and again in his
motion of January 7, 2005 [Docket Item No. 16-1]. Although he states that he has exhausted his administrative
remedies, he offers no evidence of this. Moreover, Defendants
offer evidence that Plaintiff has not initiated the
administrative remedy process regarding any issue raised in his
Complaint. (See Hebbon Decl. at ¶ 5; Ex. 1b.) Thus, this Court
will deny Plaintiff's motion for reconsideration as well as his
renewed motion for an order to cease and desist harassment of
Defendants' Motion to Dismiss
Defendants move to dismiss Plaintiff's Complaint pursuant to
Fed.R.Civ.P. 12(b)(6) for Plaintiff's failure to exhaust
available administrative remedies on all issues before filing
this civil action.
In 1996, Congress enacted the Prison Litigation Reform Act
("PLRA") "primarily to curtail claims brought by prisoners under
42 U.S.C. § 1983 . . . many of which are routinely dismissed as
legally frivolous." Santana v. United States, 98 F.3d 752, 755
(3d Cir. 1996). To this end, the PLRA provides that no action may
be brought with respect to prison conditions unless the prisoner
has exhausted available administrative remedies first.
Specifically, 42 U.S.C. § 1997e(a) provides:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until
such administrative remedies as are available are
42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement
applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong." Porter v.
Nussle, 534 U.S. 516
, 532 (2002). The statutory language
establishing the exhaustion of available remedies as a
prerequisite to filing suit is clear, unambiguous and absolute.
If the institution has an internal administrative grievance
procedure for complaints about prison conditions, an inmate must
pursue and exhaust those procedures prior to initiating suit. The
statute contemplates no exceptions.
The Bureau of Prisons has established an administrative remedy
procedure through which an inmate can seek formal review of any
complaint regarding any aspect of his imprisonment. See
28 C.F.R. §§ 542.10-542.19. First, "an inmate shall . . . present an
issue of concern informally to staff, and staff shall attempt to
informally resolve the issue before an inmate submits a Request
for Administrative Remedy." 28 C.F.R. § 542.113(a). Second, if
the inmate is unable to informally resolve the complaint, he may
file "a formal written administrative Remedy Request, on the
appropriate form (BP-9), [within] 20 calendar days following the
date on which the basis of the request occurred.
28 C.F.R. § 542.14(a). The Warden at the institution has twenty days in which to respond. 28 C.F.R. § 542.18. If the
inmate is not satisfied with the Warden's response, he may appeal
on the appropriate form (BP-10) to the Regional Director within
twenty calendar days from the date of the Warden's response.
28 C.F.R. § 542.15. Finally, the inmate may appeal the Regional
Director's response to the General Counsel within thirty days
from the date of the Regional Director's response. The General
Counsel has forty days to respond. 28 C.F.R. § 542.18. No
administrative remedy appeal is considered to have been finally
exhausted until it has been considered by the Bureau of Prisons'
Plaintiff alleges civil rights violations in connection with a
disciplinary incident report he received on January 26, 2004. The
records maintained by the Bureau of Prisons, however, indicate
that Plaintiff has not initiated the administrative remedy
process for any of these issues prior to filing his Complaint.
(Hebbon Decl. at ¶ 5; Ex. 1b.) Thus, Plaintiff's Complaint must
be dismissed for failure to exhaust the available administrative
For the reasons discussed above, Plaintiff's motions for
reconsideration and for an order to cease and desist harassment
are denied. Defendants' motion to dismiss for failure to exhaust
available administrative remedies is granted. The accompanying
Order is entered. ORDER
This matter came before the Court upon Plaintiff's motion for
reconsideration of this Court's August 19, 2004 Order as well as
Plaintiff's renewed motion for an order to cease and desist
harassment of Plaintiff of January 7, 2005 and Defendants'
unopposed motion to dismiss; and the Court having considered the
parties' submissions; and for the reasons stated in the Opinion
of today's date; and for good cause shown;
IT IS this 3rd day of May, 2005 hereby
ORDERED that Plaintiff's motion for reconsideration [Docket
Item No. 10-1] shall be, and hereby is, DENIED; and
IT IS FURTHER ORDERED that Plaintiff's motion for an order to
cease and desist harassment of Plaintiff [Docket Item No. 16-1]
shall be, and hereby is, DENIED; and
IT IS FURTHER ORDERED that Defendants' motion to dismiss for
failure to exhaust available administrative remedies [Docket Item
Nos. 20-1 and 24-1] shall be, and hereby is, GRANTED; and IT IS FURTHER ORDERED that the Clerk of Court shall close this
matter upon his docket.
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