NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

DAVID WILSON, :

: Civil Action No. 10-3356 (MLC)

Plaintiff, :

:

v. : O P I N I O N

:

POLICE OFFICER ANTHONY :

PIAZZA, et al., :

:

Defendants. :

 :

COOPER, District Judge

This matter is before the Court on Plaintiff’s Motion [12]

for Reconsideration of this Court’s Opinion and Order [8, 9]

dismissing with prejudice all claims against Defendant Sgt. Mark

Leopold, entered February 22, 2011, familiarity with which is

presumed. In brief, Plaintiff alleged that Officer Anthony

Piazza used excessive force in arresting him and that Sgt. Mark

Leopold failed to investigate when Plaintiff told him of Officer

Anthony Piazza’s actions.

As this Court noted previously, “an allegation of a failure

to investigate, without another recognizable constitutional

right, is not sufficient to sustain a section 1983 claim.” Graw

v. Fantasky, 68 Fed.Appx. 378 (3d Cir. 2003) (citing DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195-96

(1989)); cf. Burnside v. Moser, 138 Fed.Appx. 414, 416 (3d Cir.

2005) (prisoners do not have constitutionally protected right to

prison grievance process); Lewis v. Williams, 2006 WL 538546, *7

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(D. Del. 2006) (failure to investigate grievance does not raise

constitutional issue) (collecting cases). Compare Durmer v.

O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (summary judgment

properly granted to prison warden and state commissioner of

corrections, the only allegation being that they failed to

respond to letters from prisoner complaining of prison doctor’s

treatment decisions).

Here, Plaintiff requests reconsideration by asserting, for

the first time, that a jury “could find” that Sgt. Leopold failed

to investigate in order to protect Officer Piazza’s job. He

argues that a claim should not be dismissed unless it appears

beyond a doubt that the plaintiff can prove no set of facts

entitling him to relief.

Local Civil Rule 7.1(i) governs motions for reconsideration. 

See Bowers v. Nat’l Collegiate Athletic Ass’n, 130 F.Supp.2d 610,

612 (D.N.J. 2001). It specifies that a separate brief shall be

filed “setting forth concisely the matter or controlling decisions

which the party believes the Judge . . . has overlooked.” The

standard for reargument is high and reconsideration is to be

granted only sparingly. See United States v. Jones, 158 F.R.D.

309, 314 (D.N.J. 1994); NL Indus. v. Commercial Union Ins., 935

F.Supp. 513, 515 (D.N.J. 1996).

Ordinarily, a motion for reconsideration may address only

those matters of fact or issues of law which were presented to,

2

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but not considered by, the court in the course of making the

decision at issue. See SPIRG v. Monsanto Co., 727 F.Supp. 876,

878 (D.N.J.), aff’d, 891 F.2d 283 (3d Cir. 1989). Thus, matters

may not be introduced for the first time on a reconsideration

motion. See, e.g., Resorts Int’l v. Greate Bay Hotel & Casino,

830 F.Supp. 826, 831 (D.N.J. 1992); Egloff v. N.J. Air Nat’l

Guard, 684 F.Supp. 1275, 1279 (D.N.J. 1988). Absent unusual

circumstances, a court should reject new evidence that was not

presented when the court made the contested decision. See

Resorts Int’l, 830 F.Supp. at 831 n.3. Moreover, L.Civ.R. 7.1(i)

does not allow parties to restate arguments that the court has

already considered. Thus, a difference of opinion with the

court’s decision should be dealt with through the normal

appellate process. Florham Park Chevron v. Chevron U.S.A., 680

F.Supp. 159, 162 (D.N.J. 1988); see Chicosky v. Presbyterian Med.

Ctr., 979 F.Supp. 316, 318 (D.N.J. 1997); NL Indus., 935 F.Supp.

at 516 (“Reconsideration motions . . . may not be used to relitigate old matters, or to raise arguments or present evidence

that could have been raised prior to the entry of judgment.”). 

Furthermore, the court will grant a motion for reconsideration

only if the movant establishes that the court overlooked

“dispositive factual matters or controlling decisions of law.” 

See Rouse v. Plantier, 997 F.Supp. 575, 578 (D.N.J. 1998); Starr

v. JCI Data Processing, 767 F.Supp. 633, 635 (D.N.J. 1991).

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Plaintiff has not pointed to any facts or legal authority

that this Court overlooked in rendering its prior Opinion and

Order.

A pro se complaint could previously be dismissed for failure

to state a claim only if it appeared “beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,

45-46 (1957). This “no set of facts” rule was abrogated by the

Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007).

While a complaint ... does not need detailed factual

allegations, a plaintiff’s obligation to provide the

“grounds” of his “entitle[ment] to relief” requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will

not do, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

Twombly, 550 U.S. at 555 (citations omitted). “Specific facts

are not necessary; the statement need only ‘give the defendant

fair notice of what the ... claim is and the grounds upon which

it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

omitted). 

This Court previously, and properly, applied this

Twombly/Erickson standard to Plaintiff’s claim against Sgt.

Leopold. Moreover, even if Plaintiff had alleged that the

4

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motivation for Sgt. Leopold failing to investigate the allegation

of excessive force were to protect Officer Piazza’s job, that

fact would not rise to the level of a violation of another

recognizable constitutional right that would make failure to

investigate, itself, the violation of a constitutional right.

The Court will deny the motion, and issue an appropriate

order.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: September 12, 2011

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