United States District Court, D. New Jersey
Berroa, No. 62268-066 Plaintiff Pro se
L. HILLMAN, U.S.D.
matter comes before the Court upon Plaintiff's Motion for
Reconsideration of this Court's Opinion and Order
dismissing his Notice under 28 U.S.C. §§
1915(e)(2)(b)(ii) and 1915A(b)(1). See ECF No. 13.
For the reasons explained below, the Court will deny
filed a “Notice of Intent to File Suit and Litigation
Preservation Request of Video Evidence” (the
“Notice”), docketed as a complaint, on July 5,
2017. ECF No. 1. Plaintiff's Notice is only one page
long, and there is only a single factual allegation:
“On 6/24/2017 AT 11.20 Plaintiff was in the East side
of Fort Dix prison, inside food service ‘30'
receiving his lunch. While the Plaintiff was exiting the food
line Officer Sumner called the Plaintiff a FAGOT because he
asked why his food was missing meat.” Notice, ¶ 1.
The Plaintiff also states in his Notice that, “You
[defendants] have now been served with Notice that will
conclude with a law suit AFTER exhaustion of AVAILABLE
remedies have been concluded.” Notice, ¶ 2.
Court conducted its sua sponte screening for
dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A because Plaintiff is proceeding in forma
pauperis and is also incarcerated. After reviewing the
Notice, the Court concluded that, to extent that the Notice
was construed as a Complaint, it must be dismissed for
failure to state a claim upon which relief may be granted.
ECF No. 11. Specifically, the Court found that the one-page
notice filed by Plaintiff was intended to be a litigation
hold notice and not a civil action, as the Notice itself
provided that a lawsuit would follow after Plaintiff exhausts
his administrative remedies. Id. at 3-4. Because
under the Rules of Civil Procedure there is only one form of
action, the civil action, which may only be commenced by a
complaint, the Court determined that Plaintiff could not
commence a civil action pre-complaint by the Notice, and thus
the Notice must be dismissed. ECF No. 11 at 4.
addition, the Court concluded that the Notice would also need
to be dismissed because it failed to provide sufficient
factual allegations to establish a cognizable legal claim.
Id. Plaintiff only provided one factual allegation
in the Notice, which, if accepted as true, only establishes
that Kitchen Officer Sumner called Plaintiff a
“faggot.” Id. Because a single instance
of name-calling does not rise to the level of a
constitutional violation, the Court found that Plaintiff had
failed to state a claim and the Notice (or complaint) would
be dismissed for this reason. Id. at 4-5.
Motion for Reconsideration, Plaintiff argues that the Court
(1) erred by converting his Notice of Intent to Sue into a
complaint; and (2) should reverse the dismissal and convert
the Notice into a Motion for Preliminary Injunction. ECF No.
13 at 2. In the Motion, it is clear that Plaintiff intended
his Notice to act as a litigation hold letter, and that he
would like the Court to enter an injunction to preserve the
video evidence of the name-calling incident. See id.
may grant a motion for reconsideration if the moving party
shows one of the following: (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. Johnson v. Diamond State Port
Corp., 50 Fed.Appx. 554, 560 (3d Cir. 2002) (quoting
Max's Seafood Café v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999)). Local Rule 7.1 provides that
motions to reconsider shall be filed within fourteen (14)
days from the date of the entry of the order or judgment to
be reconsidered unless otherwise provided by
statute. See D.N.J. Loc. R. 7.1.
Motion for Reconsideration, Plaintiff presents no argument
regarding an intervening change in the controlling law or the
discovery of new evidence. At best, he argues a
misapplication of the law regarding litigation hold notices.
There is no merit to Plaintiff's arguments.
cites Bull v. United Parcel Service, Inc., 665 F.3d
68 (3d Cir. 2012), for the proposition that “a direct
‘Notice' was all that was needed to ‘preserve
for specific reason'” evidence. Although
Bull acknowledged the foreseeable duty to preserve
evidence in light of litigation, it involved a plaintiff who
provided copies but not original documents to the defendant,
which the trial court held was spoliation of evidence and
dismissed plaintiff's case as a sanction. Id.
The Court of Appeals for the Third Circuit determined that
such dismissal was an abuse of discretion because no
difference existed between the copies and the original.
Id. This case has no application to the instant
matter and is not grounds for reconsideration.
case cited by Plaintiff involved the denial of a preliminary
injunction to preserve evidence, in which the court found
that an injunction would be unnecessary because the
defendants were already on notice and under a legal
obligation to preserve evidence after the service of the
litigation hold notice. See Gambino v. Hershberger,
No. 17-6800 (4th Cir. 2017) (“The district court denied
the motions [for injunctive relief] and dismissed the
complaint because the Government, once on notice of the
potential lawsuit, was already obligated to preserve any
existing evidence.”). This authority cited by Plaintiff
simply demonstrates that a federal civil action need not be
commenced in order to issue a litigation hold notice and that
injunctive relief would be ...