United States District Court, D. New Jersey
ALAN C. NEWMAN, Plaintiff,
THEODORE J. HUTLER et al., Defendants.
L. WOLFSON UNITED STATES DISTRICT JUDGE.
Alan C. Newman (“Newman” or
“Plaintiff”), commenced this civil rights action
under 42 U.S.C. § 1983 on February 27, 2017. (ECF No.
1.) After granting Newman leave to proceed in forma
pauperis, the Court, upon screening, dismissed the
action with prejudice as untimely and for failure to state a
claim. (ECF Nos. 2, 4, 5.) Presently before the Court is a
motion by Newman for reconsideration of the Opinion and Order
dismissing the action. (ECF No. 9.) For the following
reasons, Newman's reconsideration motion is DENIED.
Opinion dismissing this action recited the underlying facts
and procedural history in detail, only the most pertinent
facts are now repeated. Newman's Complaint alleged that,
while he was in the Ocean County Correctional Facility in
September 2010, he slipped and fell on a puddle of water.
(See ECF No. 1.) He sought to assert claims for
civil rights violations under 42 U.S.C. § 1983 against
the facility's warden and two John Doe officers.
August 28, 2017, I issued an Opinion and Order dismissing the
Complaint upon screening under 28 U.S.C. §
1915(e)(2)(B). (ECF Nos. 4 & 5.) I found, as the incident
Newman complained of occurred in September 2010 and he did
not commence this action until February 2017, that the
Complaint was facially untimely under the applicable,
two-year limitations period. (ECF No. 4 at 3-5.) I did note
that Newman could seek reconsideration of this decision if he
could assert a valid basis for equitable tolling.
(Id. at 4 n.4.) I also found that the facts alleged
suggested conduct that was, at most, merely negligent and not
actionable under § 1983. (Id. at 5.) As it
appeared that granting leave to amend the Complaint would be
futile, such leave was denied. (Id. at 5; ECF No.
27, 2018, Newman filed a motion for reconsideration of the
Opinion and Order dismissing his Complaint. (ECF No. 9.) He
makes various arguments in favor of equitably tolling the
limitations period, including that he was advised by a prison
paralegal in November 2010 that all he needed to do to obtain
relief was file a state notice of tort claim, that he did not
know that a two-year limitations period applied until four
months after that period had expired, that he was
periodically deprived of his legal documents because of
institutional transfers, and that, due to medical problems,
he has great difficulty getting to the prison library and
must rely on other inmates to deliver his legal paperwork.
(See Pl. Br., ECF No. 9-4.) This motion is
for reconsideration are permitted under Local Civil Rule
7.1(i), but reconsideration is considered an extraordinary
remedy and is granted only sparingly. See Buzz Bee Toys,
Inc. v. Swimways Corp., 20 F.Supp.3d 483, 515 (D.N.J.
2014); Andreyko v. Sunrise Senior Living, Inc., 993
F.Supp.2d 475, 477 (D.N.J. 2014). A party seeking
reconsideration must “set forth concisely the matter
or controlling decisions which the party believes the Judge .
. . has overlooked.” L. Civ. R. 7.1(i). Motions for
reconsideration are not intended as opportunities to reargue
old matters or raise issues that could have been raised
previously. See Andreyko, 993 F.Supp.2d at 477-78;
P. Schoenfeld Asset Mgm't LLC v. Cendant Corp.,
161 F.Supp.2d 349, 352 (D.N.J. 2001). Thus, the movant has
the burden of demonstrating one of three bases for
reconsideration: “(1) an intervening change in the
controlling law; (2) the availability of new evidence that
was not available when the court [rendered its original
decision]; or (3) the need to correct a clear error of law or
fact or to prevent a manifest injustice.” Max's
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999).
motion, Newman fails to make any showing that could warrant
the Court's reconsideration of its prior Opinion and
Order. He makes no attempt to show an intervening change in
law or newly available evidence. His motion must, instead, be
treated as alleging an error of law or fact, namely, the
potential applicability of equitable tolling. (See
ECF No. 9-4.)
tolling under New Jersey law may arise “where
‘the complainant has been induced or tricked by his
adversary's misconduct into allowing the deadline to
pass,' or where a plaintiff has ‘in some
extraordinary way' been prevented from asserting his
rights, or where a plaintiff has timely asserted his rights
mistakenly by either defective pleading or in the wrong
forum.” Cason v. Arie St. Police Dep't,
Civ. No. 10-497 (KSH), 2010 WL 2674399, at *5 n.4 (D.N.J.
June 29, 2010) (quoting Freeman v. State, 347
N.J.Super. 11, 31 (Super. Ct. App. Div. 2002)). Newman's
reasons that a prison paralegal gave him incorrect
information and that he did not realize his claim was subject
to a two-year statute of limitations until four months after
it had expired, do not support equitably tolling the lengthy
delay before Newman filed his Complaint.When Newman
learned of the limitations period, apparently in or around
February 2013, he should have diligently sought to promptly
file his Complaint. Instead, the two-year limitations period
could have run again twice over between the time he allegedly
learned of the deadline and when he finally commenced this
action in February 2017. Newman's claims that he was, on
“several” occasions, transferred to a different
facility and that these transfers deprived him of his legal
papers, “sometimes for 3 to 4 weeks, ” also does
not suffice to account for the fact that he filed his
Complaint nearly five years after the statute of limitations
expired. Nor does Newman's allegation that he has trouble
getting to the law library and must rely on the assistance of
other prisoners to help him warrant equitable tolling for
such an extended period. Cf. Singleton v. DA Phila.,
411 Fed.Appx. 470, 472-73 (3d Cir. 2011). Newman has noted
that he filed a notice of tort claim regarding the underlying
incident in December 2010 and that he filed a complaint in
state court in February 2013. This belies his argument that
extraordinary circumstances prevented him from seeking legal
recourse till nearly seven years after the incident.
case, even if Newman could make a showing in favor of
equitable tolling sufficient to account for the prolonged
delay in filing his Complaint, untimeliness was only one of
the two bases for dismissing the Complaint upon screening. In
the prior Opinion, the Court also noted that “the
Complaint at best describes negligent conduct, which is not
actionable under section 1983.” (ECF No. 4 at 5.)
Newman has made no argument that this independent, adequate
reason for dismissing his Complaint was in any way erroneous.
Accordingly, he has not shown any basis for an award of the
“extraordinary remedy” of reconsideration.
See Buzz Bee Toys, 20 F.Supp.3d at 515.
foregoing reasons, Newman's motion for reconsideration of
the Court's prior Opinion and Order, (ECF No. 9), is