STILE v. HOLLINGSWORTH

NOT FOR PUBLICATION ECF 86

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

JAMES STILE, :

: Civ. Action No. 17-2693(RMB)

Plaintiff :

:

v. : OPINION

:

WARDEN JORDAN HOLLINGSWORTH :

et al.,

:

:

Defendants :

APPEARANCES:

Francis X. Manning, Esq.

STRADLEY, RONON, STEVENS & YOUNG, LLP

Liberty View

457 Haddonfield Road

Suite 100

Cherry Hill, NJ 08002

Adam Joseph Petitt, Esq.

Joseph William Catuzzi, Esq.

STRADLEY RONON STEVENS & YOUNG LLP

2005 Market Street, Suite 2600

Philadelphia, PA 19103

Samantha Beth Kats, Esq.

STRADLEY RONON STEVENS & YOUNG LLP

Great Valley Corporate Center

30 Valley Stream Parkway

Malvern, PA 19355

On behalf of Plaintiff

Jessica Rose O’Neill, Assistant United States Attorney

Peter Gregory Vizcarrando, Assistant United States Attorney

Office of the U.S. Attorney, District of New Jersey

401 Market Street, 4th FLOOR

P.O. BOX 2098

Camden, NJ 08101

On behalf of Defendants

BUMB, United States District Judge

Plaintiff brought this Bivens and Federal Tort Claim action,

alleging he was subjected to unconstitutional conditions of

confinement while incarcerated for two years at the Federal

Correctional Institution in Fort Dix, New Jersey. This matter comes

before the Court upon Defendants Warden Jordan Hollingsworth and

Warden David Ortiz’s (“Defs”) motion for reconsideration of this

Court’s order granting in part and denying in part their motion to

dismiss Counts I, II and III of Plaintiff’s amended complaint.

(Mot. for Reconsideration, Dkt. No. 86.) Plaintiff opposes

reconsideration. (Pl’s Opp. Brief, Dkt. No. 87.) For the reasons

discussed below, the Court grants reconsideration in part by

denying the qualified immunity defense at the motion to dismiss

stage, and denies reconsideration in part by assuming the existence

of a Bivens claim.

I. PROCEDURAL HISTORY

Plaintiff initiated this action on April 20, 2017. (Compl.,

ECF No. 1.) This Court reviewed the complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(b) and § 1915A. On October 23, 2017, the Court

dismissed certain claims and permitted claims related to the

environmental conditions at FCI Fort Dix against Wardens

Hollingsworth and Ortiz to proceed, noting that they were subject

to further briefing pursuant to the United States Supreme Court’s

decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). (Opinion and

Order, ECF Nos. 4, 5.) Defendants moved for dismissal of

Plaintiff’s remaining claims. (First Mot. to Dismiss, ECF No. 29.)

Plaintiff responded with a motion to amend his complaint to state

his constitutional claims as tort claims under the Federal Tort

Claims Act. (Mot. to Amend, ECF No. 32.) Plaintiff was appointed

counsel on March 20, 2019. (Order, ECF No. 42.) After discussions

with the Court, counsel filed an amended complaint on August 13,

2019. (Am. Compl., ECF No. 51.) Upon service of the amended

complaint, Defendants filed a Partial Motion to Dismiss Counts I,

II and III of Plaintiff’s Amended Complaint. (“Defs.’ Partial Mot.

to Dismiss,” ECF No. 65.) The Court granted in part and denied in

part the motion to dismiss by Opinion and Order dated June 4, 2020.

(Opinion, Dkt. No. 82; Order, Dkt. No. 83.) Defendants’ motion for

reconsideration followed.

II. MOTION FOR RECONSIDERATION

A. Standard of Review

Motions for reconsideration are permitted by Local Civil Rule

7.1(i) for matters which a party “believes the Judge or Magistrate

Judge has overlooked” when it ruled on the motion. Under Federal

Rule of Civil Procedure 59(e), a motion to alter or amend a

judgment, “[t]he purpose of a motion for reconsideration is ‘to

correct manifest errors of law or fact or to present newly

discovered evidence.’” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d

Cir. 2010) (quoting Max’s Seafood Café ex rel. Lou-Ann, Inc. v.

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). “A proper Rule 59(e)

motion therefore must rely on one of three grounds: (1) an

intervening change in controlling law; (2) the availability of new

evidence; or (3) the need to correct clear error of law or prevent

manifest injustice.” Lazaridis, 591 F.3d at 1218 (citing N. River

Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.

1995).

B. The Parties’ Arguments

Defendants seek reconsideration on two issues; first, whether

it was clear legal error to postpone ruling on the qualified

immunity defense at the motion to dismiss stage; and second,

whether it was clear legal error to assume a Bivens cause of action

before proceeding to the qualified immunity defense if the

qualified immunity defense is not granted. (Brief in Supp. of Defs’

Mot. for Reconsideration, Dkt. No. 86-1 at 6.)1

1. Qualified immunity

Defendants submit that the Court erred by postponing

resolution of their qualified immunity defense based on disputed

facts, rather than assuming Plaintiff’s allegations to be true and

determining whether the claim was supported by clearly established

law. (Id. at 10-12.) Defendants contend that while a court may

postpone resolution of qualified immunity based on disputed facts

1 Page citations are to the page numbers assigned by the Court’s

Case Management Electronic Case Files (“CM/ECF.”)

at the summary judgment stage, it is improper to do so at the

motion to dismiss stage. (Id.)

In opposition to Defendants’ motion for reconsideration on

qualified immunity, Plaintiff counters that it is well settled

that the qualified immunity defense may present factual issues

that cannot be resolved at the motion to dismiss stage. (Pl’s Mem.

of Law in Opp. to Defs’ Mot. for Reconsideration, Dkt. No. 87 at

6-7.) Moreover, Plaintiff argues that the Court found Plaintiff

alleged a sufficient factual basis to state a violation of clearly

established rights under the Eighth Amendment. (Id. at 6.)

The Court’s purpose in postponing resolution of the qualified

immunity issue was to permit discovery on Plaintiff’s allegations

regarding his level of exposure to asbestos and contaminated

drinking water, defendants’ knowledge of this exposure, and

Plaintiff’s allegations of the resulting damage to his present and

future health, particularly because many of Plaintiff’s

allegations are made “upon information and belief.” Making

allegations “upon information and belief” requires a degree of

faith that discovery will provide evidence to support “the belief”,

but Plaintiff has been appointed counsel and the Court relies on

the standard for pleadings set forth in Federal Rule of Civil

Procedure (“FRCP”) 11.

The Third Circuit recently stated that when the practical

effect of a district court’s order is to permit discovery on a

Plaintiff’s claim over the defendant’s assertion of the qualified

immunity defense, the court has denied qualified immunity at the

motion to dismiss stage. Weimer v. Cty. of Fayette, Pennsylvania,

972 F.3d 177, 185 (3d Cir. 2020); see also Howe v. City of

Enterprise, 861 F.3d 1300, 1302 (11th Cir. 2017) (denial of

qualified immunity at the motion to dismiss stage is immediately

appealable even if the district court “reserved ruling on a

defendant's claim to immunity” until a later stage of the

litigation because the “immunity is a right not to be subjected to

litigation beyond the point at which immunity is asserted.”)

Therefore, for the reasons discussed below, the Court will deny

qualified immunity to Defendants at the motion to dismiss stage.

When the allegations in paragraphs 13-38 and 84-104 of the

amended complaint are accepted as true and the Court expects are

being made in compliance with FRCP 11, a reasonable person would

have known it would violate the Eighth Amendment to not take

reasonable steps to abate Plaintiff’s exposure to asbestos and

harmful chemicals in his drinking water that caused damage to his

present and/or future health. The Supreme Court case of Helling v.

McKinney, and the Third Circuit case of Atkinson v. Taylor clearly

establish that a prison official, with deliberate indifference,

exposes an inmate to levels of a toxic substance “that pose an

unreasonable risk of harm to his future health” violates the Eighth

Amendment. Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003)

(citing Helling v. McKinney, 509 U.S. 25 (1993)). See White v.

Pauly, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 (2017) (explaining

that clearly established law, for purposes of qualified immunity,

must make apparent the unlawfulness of the conduct that violates

the Constitution). Although the toxic substance in Atkinson and

Helling was environmental tobacco smoke (“ETS”), a reasonable

person would understand that the same standard applies to the high

level of exposure to harmful chemicals alleged to contaminate

Plaintiff’s drinking water and Plaintiff’s daily exposure to

breathing in asbestos, because these contaminates at sufficient

levels are widely known to be dangerous to human health. Once

again, it bears repeating that the Court assumes compliance with

Rule 11. Therefore, the Court grants reconsideration of postponing

the qualified immunity issue and denies qualified immunity to

Defendants at the motion to dismiss stage, noting that the issue

may be resurrected at the summary judgment stage.

2. Existence of a Bivens Cause of Action

Defendants acknowledge that a court may assume the existence

of a Bivens cause of action if it then dismisses the action on

other grounds, such as qualified immunity, but that a court may

not otherwise assume the existence of a cause of action to permit

a claim to proceed. (Brief in Supp. of Defs’ Mot. for

Reconsideration, Dkt. No. 86-1 at 12-14.) Defendants argue that

the issue of whether a Bivens cause of action exists is antecedent

to the qualified immunity defense, and both should be resolved at

early stages in a case. (Id. at 13-15.) Plaintiff maintains that

a court may assume a cause of action exists without dismissing the

claim on another basis because the existence of a cause of action

is not jurisdictional, citing Burks v. Lasker, 441 U.S. 476, n. 5

(1979). (Pl’s Mem. of Law in Opp. to Defs’ Mot. for

Reconsideration, Dkt. No. 87 at 7-8.)

The Court denies reconsideration of its decision to assume

the existence of a Bivens cause of action at the motion to dismiss

stage because Defendants have failed to establish clear error. It

is well settled that “[t]he question whether a cause of action

exists is not a question of jurisdiction, and therefore may be

assumed without being decided.” Burks v. Lasker, 441 U.S. 471, 476

(1979); see also Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir.

2020) (citing Air Courier Conference of Am. v. Am. Postal Workers

Union, 498 U.S. 517, 523 n.3 (1991) (“Whether a cause of action

exists is not a question of jurisdiction....”) While the Court

acknowledges the Third Circuit’s guidance that “threshold

questions are called that for a reason, and it will often be best

to tackle head on whether Bivens provides a remedy, when that is

unsettled” but the language is not mandatory and the issue arose

in Bistrian at the summary judgment stage, after the parties failed

to address it in the district court. Bistrian v. Levi, 912 F.3d

79, 89 (3d Cir. 2018). Defendants are not precluded from arguing,

in a motion for summary judgment, that the Court should not extend

a Bivens damages remedy in this matter. Based on facts presented

in discovery, Defendants may have additional arguments supporting

their position that special factors counsel hesitation in implying

a Bivens damages remedy here. Particularly where the case involves

an issue of first impression, it may be beneficial to conduct

discovery before making that determination.

V. CONCLUSION

For the reasons discussed above, the Court grants

reconsideration in part by denying the qualified immunity defense

at the motion to dismiss stage, and denies reconsideration in part

by assuming the existence of a Bivens claim.

An appropriate Order follows.

Date: January 29, 2021 s/Renée Marie Bumb

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE