United States District Court, D. New Jersey
MICHAEL BERK, Plaintiff Pro se
Carpenito, United States Attorney John T. Stinson, Assistant
United States Attorney Attorneys for Defendants
L. HILLMAN, U.S.D.J.
Michael Berk moves for reconsideration of this Court's
screening opinion and order, or in the alternative for
permission to file an amended complaint. See ECF No.
20. Defendants William Bickart, Jordan Hollingsworth, and
Stacey Marantz move to dismiss the complaint. ECF No. 33. For
the following reasons, the motion for reconsideration, or in
the alternative to amend, is denied without prejudice.
Defendants' motion to dismiss shall be administratively
a federal prisoner, filed a complaint under Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),
alleging that Defendants Warden Jordan Hollingsworth, Chief
Psychologist Stacey Marantz, and Behavioral Management
Programs Coordinator William Bickart directed Plaintiff's
transfer from the Federal Correctional Institution at Fort
Dix in Fort Dix, New Jersey, a prison located near his family
and home, to the Federal Correctional Institution at
Seagoville in Texas, because of certain content contained in
his outbound mail. Plaintiff contends the transfer was
retaliation for exercising his First Amendment right to
freedom of expression. See ECF No. 1. He also
alleged Defendant Jane Doe opened, read, and confiscated his
personal outbound mail in violation of the First and Fourth
Amendments and that Defendant Caroline Gary, who is employed
at the Bureau of Prison's Designation and Sentence
Computation Center and not at FCI Fort Dix, approved and
processed his transfer. Id.
Court screened the complaint under 28 U.S.C. §
1915(e)(2)(B) and concluded that the complaint should proceed
against Defendants Hollingsworth, Martinez, Bickart, and Doe.
ECF No. 13. Defendant Gary was dismissed. Id. The
Court noted that an amended complaint and
“supplement” that Plaintiff filed prior to
screening violated Federal Rule of Civil Procedure 15(a).
Id. at 2 n.1. Summonses were issued to Defendants.
ECF No. 18.
28, 2019, Plaintiff filed his motion for reconsideration, or
alternatively to amend his complaint. ECF No. 20. After
Defendants were served, they filed a motion to dismiss. ECF
No. 33. In their motion to dismiss, Defendants oppose
Plaintiff's motion for reconsideration or to amend.
STANDARD OF REVIEW
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.
15(a) of the Federal Rules of Civil Procedure permits a party
to amend a pleading once as a matter of course twenty-one
(21) days after serving the pleading or twenty-one (21) days
“after a responsive pleading or service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.”
Fed.R.Civ.P. 15(a)(1)(A)-(B). A court may deny leave to amend
a pleading where it finds: (1) undue delay; (2) undue
prejudice to the non-moving party; (3) bad faith or dilatory
motive; or (4) futility of amendment. Shane v.
Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
“‘Futility' means that the complaint, as
amended, would fail to state a claim upon which relief could
be granted.” Id. The Court applies the same
standard of legal sufficiency as applies under Rule 12(b)(6).
“The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2).
argues the Court should reconsider its March 5, 2019 decision
to prevent manifest injustice. ECF No. 20 at 3. He does not
cite the legal authority for his motion for reconsideration,
but his motion for reconsideration is untimely under this
District's rules. Local Civil Rule 7.1 requires motions
for reconsideration to be filed within 14 days of the
judgment being challenged. Local Civ. R. 7.1(i). The Court
screened the complaint and struck the proposed amendments on
March 5, 2019. ECF No. 13. Plaintiff did not submit his
motion for reconsideration until 78 days later on May 22,
2019. His motion is also untimely under Rule 59, which
requires motions to alter or amend a judgment to be filed no
later than 28 days after the entry of the judgment.
extent the Court construes the motion as a motion to amend
the complaint, it is denied without prejudice. The proposed
amended complaint consists of 97 lengthy paragraphs across 39
pages beginning with Plaintiff's birth in 1980,
proceeding through his criminal prosecution in 2010, and
culminating with his itemized list of disagreements with the
Bureau of Prisons dating back to 2011. In short, the proposed
amended complaint fails to satisfy the Rule 8(a)(2)
requirement that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief” or the Rule 8(d)(1) requirement that
“[e]ach allegation must be simple, concise, and
direct.” Fed.R.Civ.P. 8(a), (d). See also Williams
v. Wetzel, 776 Fed.Appx. 49, 49-50 (3d Cir. 2019)
(“The Complaint is a sprawling work that defies Rule
8(a)(2)'s call for ‘a short and plain statement of
the claim [or claims] showing that the pleader is entitled to