United States District Court, D. New Jersey
B. KUGLER, UNITED STATES DISTRICT JUDGE
INTRODUCTION & PROCEDURAL BACKGROUND
Jeffrey Drury, is proceeding pro se with an amended
civil rights complaint filed pursuant to 42 U.S.C. 1983
against several defendants. One of the defendants, M.
Debellis, filed a motion to dismiss the amended complaint for
failure to state a claim. Mr. Drury did not file a response
to that motion to dismiss. On June 28, 2017, this Court
granted M. Debellis' motion to dismiss. (See
Dkt. Nos. 51 & 52) Mr. Drury's claims of equal
protection and retaliation against M. Debellis were dismissed
without prejudice. The remaining claims against M. Debellis
were dismissed with prejudice.
10, 2017, this Court received a letter from Mr. Drury.
(See Dkt. No. 53) Mr. Drury states that he never
received a copy of M. Debellis' motion to dismiss. While
M. Debellis attached a certificate of service to his motion
to dismiss stating that he served Mr. Drury with the motion
by certified mail, it appears as if M. Debellis may have
mailed it to the incorrect address. Indeed, the certificate
of service indicates that M. Debellis served Mr. Drury at
Bayside State Prison. However, at the time the motion to
dismiss was filed, Mr. Drury's place of incarceration and
address of record in this case was at South Woods State
Prison. (See Dkt. No. 28) Therefore, the motion to
dismiss may have in fact never been properly served on Mr.
Court will treat Mr. Drury's letter as a request for
reconsideration of the June 28, 2017 opinion and order.
Motions for reconsideration are filed pursuant to Federal
Rule of Civil Procedure 59(e) and are governed by Local Civil
Rule 7.1(i) which allows a party to seek reconsideration by
the Court in matters in which the party believes the judge
has “overlooked.” See Carney v. Pennsauken
Twp. Police Dep't, No. 11-7366, 2013 WL 4501454, at
*1 (D.N.J. Aug. 21, 2013) (citations omitted). “The
standard for reargument is high and reconsideration is to be
granted only sparingly.” Yarrell v.
Bartkowski, No. 10-5337, 2012 WL 1600316, at *3 (D.N.J.
May 7, 2012) (citing United States v. Jones, 158
F.R.D. 309, 314 (D.N.J. 1994)). To be successful on a motion
for reconsideration, a petitioner has the burden to
demonstrate: “(1) an intervening change in the
controlling law; (2) the availability of new evidence that
was not available when the court [issued its order]; or (3)
the need to correct a clear error of law or fact or to
prevent manifest injustice.” Max's Seafood
Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (citation omitted); see also
Berry v. Jacobs IMC, LLC, 99 Fed.Appx. 405, 410 (3d Cir.
2004). Additionally, Rule 59(e) requires that it be filed
within twenty-eight days after the entry of judgment.
See Fed. R. Civ. P. 59(e).
Drury claims that he never received notice of M.
Debellis' motion to dismiss. The certificate of service
attached to M. Debellis' motion to dismiss lists Mr.
Drury's old address that was no longer his address of
record at the time M. Debellis filed his motion. In light of
these circumstances, this Court will grant Mr. Drury's
request for reconsideration of its June 28, 2017 opinion and
order. The June 28, 2017 opinion and order granting M.
Debellis' motion to dismiss will be vacated in light of
this purported lack of proper service of the motion.
this does not necessarily mean that Mr. Drury can proceed
with his claims against M. Debellis. Indeed, this Court still
must screen the amended complaint as it pertains to M.
Debellis pursuant to 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A to determine whether Mr. Drury's claims
against M. Debellis are frivolous or malicious, fail to state
a claim upon which relief may be granted, or seek monetary
relief against him if he is immune from suit. For the
following reasons, Mr. Drury's claims against M. Debellis
do not merit proceeding past this screening. Accordingly, M.
Debellis' motion to dismiss the amended complaint that
was served on Mr. Drury at his old address will be denied as
FACUTAL BACKGROUND OF AMENDED COMPLAINT
Court previously laid out the factual background of the
amended complaint as it relates to Mr. Drury's
allegations against M. Debellis as follows:
M. Debellis is a senior correctional officer at Bayside State
Prison (“BSP”) where Mr. Drury was previously
incarcerated. Mr. Drury had to go to the medical
department while incarcerated at BSP at various times due to
the fact that he has multiple sclerosis. Mr. Drury had a job
as a pot washer at BSP. He worked the 8:00 a.m. to 1:00 p.m.
shift. Defendant M. Debellis did not like the fact that Mr.
Drury had to leave work sometimes during his shift to attend
medical appointments. M. Debellis harassed Mr. Drury
verbally. On January 30, 2015, Mr. Drury had a 10:00 am
medical appointment of approximately one hour. This
appointment was longer than his other appointments. Mr. Drury
returned to work after this appointment. The next day, Mr.
Drury was fired by M. Debellis from his pot washing job. M.
Debellis told him that he had not come back to work the
previous day. M. Debellis further told Mr. Drury that he was
sick of all of his medical appointments and that Mr. Drury
could take his “sick ass to whatever medical
appointments you want to now[.]” (Dkt. No. 37 at p. 38)
Mr. Drury brings his amended complaint under 42 U.S.C. §
1983, the Americans with Disabilities Act
(“ADA”), the Rehabilitation Act and the New
Jersey Administrative Code. He sues M. Debellis in both his
official and individual capacities. He seeks injunctive
relief and monetary damages in his amended complaint.
(Dkt. No. 51 at p.2)
previously stated, this Court must screen the amended
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and
1915A. Under the Prison Litigation Reform Act, Pub.L.
104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77
(Apr. 26, 1996) (“PLRA”), district courts must
review complaints in those civil actions in which a prisoner
is proceeding in forma pauperis, see 28 U.S.C.
§ 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b),
or brings a claim with respect to prison conditions,
see 42 U.S.C. § 1997e. The PLRA directs
district courts to sua sponte dismiss any claim that
is frivolous, is malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B).
legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
is the same as that for dismissing a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).” Schreane
v. Seana, 506 F.App'x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000)); Mitchell v. Beard, 492 F.App'x 230,
232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F.App'x 159, 162
(3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
se pleadings, as always, will be liberally construed.
See Haines v. Kerner, 404 U.S. 519 (1972).
Nevertheless, “pro se litigants still must
allege sufficient facts in their complaints to support a
claim.” Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013) (citation omitted).
plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of constitutional rights. Section
1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory
relief was unavailable.
to state a claim for relief under § 1983, a plaintiff
must allege first, the violation of a right secured by the
Constitution or laws of the United States, and second, that
the alleged deprivation was committed or caused by a person
acting under color of state law. See Harvey v. Plains
Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011)
(citations omitted); see also West v. Atkins, 487
U.S. 42, 48 (1988).
indicated above, this Court applies the same standard when
reviewing a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) as it does when screening the
complaint for failure to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A. Mr. Drury ...