United States District Court, D. New Jersey
B. KUGLER UNITED STATES DISTRICT JUDGE.
Vernice Clark Holmes, a former prisoner at Bayside State
Prison (“BSP”), moves for reconsideration of this
Court's order dismissing his complaint without prejudice.
For the following reasons, the motion is denied.
original complaint filed on March 30, 2017, Mr. Holmes
alleged he was assaulted by an unidentified corrections
officer on October 15, 2015 while he was incarcerated at BSP.
According to the complaint, the officer conducted a search
prior to recreation time and grabbed Mr. Holmes' buttocks
and genitals. The officer kicked Mr. Holmes and punched him
in the face after plaintiff objected to the contact. Other
officers responded to the scene and proceeded to assault Mr.
Holmes. Plaintiff alleged he sustained injuries from which he
continues to suffer, as well as permanent physical and
Holmes' complaint raised claims of excessive force,
denial of medical care, as well as constitutional claims of
failure to train and supervise by defendants. He also alleged
there were policies and practices regarding the covering up
of misconduct by corrections officers. Defendants State of
New Jersey, New Jersey Department of Corrections, Bayside
State Prison, and John Powell in his official capacity as BSP
Administrator, moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(6) on May 11, 2017. Mr. Holmes
responded by submitting a document captioned as a
cross-motion to amend his complaint and a proposed amended
complaint, although it did not comply with the Local Rules
November 30, 2017, the Court granted the motion to dismiss
and denied the cross-motion to amend. Mr. Holmes filed the
instant motion for reconsideration on December 11, 2017.
Defendants subsequently filed opposition to the motion.
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 F. App'x 405, 410 (3d
Holmes argues the Court erred in dismissing his New Jersey
Tort Claims Act (“NJTCA”) claims. He states
Defendants did not raise this argument in their motion papers
and that he did in fact file a tort claims notice. He
therefore asks the Court to reopen the matter so he can file
an amended complaint. Defendants oppose the motion by arguing
the Court found that they were immune to the state tort
to Mr. Holmes' argument, the Court did not deny the
cross-motion to amend because he failed to comply with the
notice provisions of the NJTCA. The Court denied the
cross-motion because Mr. Holmes failed to allege in the
proposed amended complaint that he complied with the notice
provisions of the NJTCA. Whether he in fact complied with the
requirement was not at issue; he failed to put that fact in
his complaint. The Court therefore could not assure itself of
its jurisdiction over the NJTCA claims on the face of the
proposed amended complaint. Courts in this District have
consistently dismissed NJTCA claims when plaintiffs failed to
allege compliance with the notice provision in the complaint.
See, e.g., Baker v. Camarillo, No. 17-12095, 2018 WL
1203473, at *4 (D.N.J. Mar. 8, 2018); Baker v.
Fishman, No. 14-7583, 2017 WL 2873381, at *3 (D.N.J.
July 5, 2017); Abulkhair v. Office of Attorney Ethics New
Jersey, No. 16-03767, 2017 WL 2268322, at *9-10 (D.N.J.
May 24, 2017); Bethea v. Roizman, No. 11-254, 2012
WL 2500592, at *7 (D.N.J. June 27, 2012). See also
Fed. R. Civ. P. 8(a) (“A pleading that states a claim
for relief must contain ... the grounds for the court's
jurisdiction[.]”). Nothing prevented Mr. Holmes from
filing an amended complaint containing the notice of tort
claim instead of this motion for reconsideration after the
Court dismissed the complaint without prejudice.
to grant a motion for reconsideration is a matter within the
Court's discretion, but it should only be granted where
such facts or legal authority were indeed presented but
overlooked. See DeLong 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); see also Williams v. Sullivan, 818 F.Supp.
92, 93 (D.N.J. 1993). Mr. Holmes did not include the relevant
facts in his complaint; the Court cannot have overlooked
something that was not there. The Court will deny the motion
for reconsideration because Mr. Holmes has not met the high
standard for relief. He may move to amend his complaint
within 21 days of this Opinion and Order, subject to any
available defenses under the Federal Rules, at which time the
Court will reopen the matter.