[Docket No. 4]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

RAFAEL FONTANEZ, :

 : Civil Action No. 

Plaintiff, : 11-2573 (RMB)

 :

v. : MEMORANDUM OPINION 

 : AND ORDER

ABIGAIL LOPEZ et al., :

 :

Defendants. :

_______________________________:

 

This matter comes before the Court upon a motion titled

“Motion Under Federal Civil Rule 60(a), (b)(1)(4)(6) with 28 USC §

2201 and § 2202 Declaratory Remedy Showing the Judge Bumb Abuse of

Discretion in the Order (Dckets 1,2, & 3) on July 12, 2011 which

Dismissed with Prejudice the Original Complaint Allegation(s) that

Caused Extreme Due Process Unconstitutional Opinion Violations and

Prejudice in the Plaintiff’s Mandated Preparation in the Ordered

First Amended Complaint,” Docket Entry No. 2, at 2 (citations,

spelling, punctuation, parenthetical and capitalization in

original). The motion is denied.

On May 5, 2011, the Clerk received a package submitted by

Rafael Fontanez (“Plaintiff”), an inmate confined at the Federal

Correctional Institution at Forth Dix, Fort Dix, New Jersey. See

Docket Entry No. 1. The package indicated that Plaintiff was

seeking to commence a civil action in forma pauperis, alleging

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violations of his constitutional rights, pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), and also asserting wrongdoings under the Federal Tort Claim

Act (“FTCA”). See id. The submission included a nineteen-page,

single-spaced civil complaint, see id., a 62-page compilation of

exhibits, see Docket Entry No. 1-2, and Plaintiff’s application to

prosecute his challenges in forma pauperis. See Docket Entry No.

1-1.

The Court granted Plaintiff in forma pauperis status, see

Docket Entries Nos. 2 and 3, and carefully examined 81 pages of

Plaintiff’s submission. See generally, Docket Entry No. 2. By an

Order entered July 12, 2011, the Court dismissed Plaintiff’s claims

for the reasons set forth in an accompanying Opinion. 

The Court, however, noted in its Opinion, however, that one

of Plaintiff’s claims amounted to a potentially plausible Bivens

claim. Specifically, the Court observed: “the sole potentially

viable claim that this Court can discern from the face of the

Complaint is that Elias was allegedly made aware of Plaintiff's

severe physical pain but declined to prescribe him any

pain-reducing medications during the period from July 15, 2009, to

October 15, 2009. Consequently, in the event Plaintiff elects not

to amend his Complaint by asserting factual challenges other than

those stated in the Complaint, but elects to proceed with his

challenge based on such alleged denial of pain-reducing

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medications, Plaintiff can simply verify, in writing, his desire

to so proceed.” Id. at 20. The Court, however, accompanied that

observation with the statement stressing that Plaintiff’s

complaint, while alleging that he exhausted only his personal tort

claims with the DOJ, might be subject to dismissal for the

purposes of the Bivens analysis on the grounds of failure to

exhaust Plaintiff’s Bivens challenges with the Bureau of Prisons

(“BOP”). See id. at 20-21 (observing that Plaintiff’s lengthy 

submission merely indicated that he filed a grievance with his

warden but was silent as to any exhaustion with the Regional or

Central Offices of the BOP). Correspondingly, the Court noted

that Plaintiff’s sole facially viable Bivens claim appeared

subject to dismissal on that ground. 

However, just as with the substance of Plaintiff's

factual assertions made in the Complaint, the Court

[did] not rule out the possibility that Plaintiff's

62-page compilation of exhibits and his discussion

of administrative exhaustion of his tort claims

before the DOJ inadvertently omitted to mention (or

to include exhibits indicating) that Plaintiff also

administratively exhausted his constitutional

challenges before the BOP. Therefore, jointly with

granting Plaintiff leave to amend his pleading by

articulating facts other than those already

discussed in this Opinion, the Court [also]

allow[ed] Plaintiff an opportunity to clarify

whether this Court [was] correct in its impression

[as to] Plaintiff's failure to exhaust his Bivens

challenges before the BOP. [The Court also

explained that, i]n the event Plaintiff's

constitutional challenges were duly exhausted,

Plaintiff [did not have to] copy these

administrative papers; it [was] sufficient for

Plaintiff to merely clarify that he did so exhaust

his Bivens claims based on the alleged denial of

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pain-reducing medication by Elias (or that he so

exhausted those Bivens claims with regard to which

Plaintiff will elect to articulate additional facts

in his amended complaint).

Id. at 22 and n. 9 (footnote incorporated in the main text).

The Court also dismissed Plaintiff’s allegations for the

purposes of his FTCA claims. Yet, the Court noted:

However, same as with Plaintiff’s Bivens challenges,

the Court cannot rule out the possibility that Plaintiff

may amend his Complaint by asserting: (a) sufficient

facts showing that Lopez, Elias and Bourton were

government employees within the meaning of the FTCA

requirement; (b) Plaintiff’s exhaustion of his tort

claims before the DOJ that raised the same factual

predicate and sought a particular sum certain; and (a) a

specific sum Plaintiff is seeking, under the FTCA, in

this action. The Court, therefore, will dismiss

Plaintiff’s . . . FTCA claims that might be cured by

pleading without prejudice.

Id. at 32.

Armed with the extensive guidance as set forth in the Court’s

Opinion as to how to cure the shortcomings of his Bivens and FTCA

challenges, Plaintiff was allowed forty-five days to file his

amended complaint detailing his Bivens and FTCA claims. See Docket

Entry No. 3 (clarifying, in great detail, what facts Plaintiff had

to assert in order to cure his challenges and explaining that

Plaintiff could pursue either Bivens or FTCA challenges, or both). 

The Court’s order to that effect was issued on July 12, 2011.

In response, Plaintiff did not submit his amended pleading. 

Rather, he filed the instant motion, a twenty-page single-spaced

document consisting of 94 paragraphs and a four-paragraph

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conclusion. See Docket Entry No. 4, at 2-21. The bulk of these 94

paragraphs presents various paraphrasings of Plaintiff’s

displeasure with this Court reduced to Plaintiff’s opinions that

this Court “abused [its] discretion,” “changed the settled law

standard,” “unjust[ly] dismiss[ed]” Plaintiff’s original complaint,

issued an “unfair ruling,” adopted “unjust methodology,” etc. See,

Docket No. 4 generally.

A few of Plaintiff’s statements scattered among these 94

paragraphs suggests Plaintiff’s confusion as to the gist of the

Court’s prior ruling. The Court, therefore, finds it warranted to

re-summarize its prior findings. As the foregoing discussion

illustrates, Plaintiff’s Bivens claims were disposed of in the

following fashion: (a) Plaintiff’s claims against his current and

former wardens, as well as those claims against Defendant Lopez

that were based solely on her supervisory position, were dismissed

with prejudice, since claims based solely on the doctrine of

respondeat superior are not cognizable in a Bivens action; (b)

Plaintiff’s claims against Defendants Elias, Bourton and Lopez that

asserted Plaintiff’s disagreement with the medical treatment

provided to Plaintiff, Plaintiff’s displeasure with the decision

not to x-ray Plaintiff’s arm during the first visit and, instead,

to treat him with ice and pain-killer, Plaintiff’s displeasure with

the decision to schedule his examination by a specialized doctor in

two weeks, Plaintiff’s displeasure with how a cast was applied to

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his arm, etc., were dismissed with prejudice, because none of these

allegations stated a wrong of constitutional magnitude, but (c)

Plaintiff’s claims against Defendant Elias, based on Plaintiff’s

assertion that Defendant Elias outright refused to provide

Plaintiff with pain-killers was dismissed without prejudice, with

a directive to clarify whether Plaintiff exhausted that claim

administratively (and with a clarification that a mere assertion of

such exhaustion shall suffice, and no copies of administrative

documents were needed at this initial pleading stage); and (d)

Plaintiff was directed to assert facts, if any, showing that

Defendants were deliberately indifferent to Plaintiff’s medical

needs within the meaning of the test extensively detailed to

Plaintiff.1

1

 Plaintiff’s motion suggests that Plaintiff now wishes to

change his factual assertions against Defendant Bourton: while

Plaintiff’s original complaint maintained that Defendant Bourton

examined Plaintiff’s arm for ten minutes, Plaintiff’s motion

asserted that the entire period of Plaintiff’s medical visit with

Bourton took ten minutes, and Defendant Bourton spent only one

minute looking at Plaintiff’s arm from afar and the remaining

nine minutes typing documents associated with Plaintiff’s visit. 

See Docket Entry No. 4, at 13-14. While the Court notes its

concern with the discrepancy in Plaintiff’s original and nowasserted claims, this Court – being mindful of Plaintiff’s pro se

litigant status – expressly provided Plaintiff with leave to

amend his original pleading by stating facts indicative of

deliberate indifference on the part of Defendants Bourton, Elias

and Lopez. However, Plaintiff cannot raise these new claims in a

motion: he must raise these new claims in his amended pleading. 

See, e.g., Bell v. City of Phila., 275 Fed. App'x 157, 160 (3d

Cir. 2008) (a litigant cannot plead claims, state and/or support

facts by any non-pleading document, be it moving papers, an

opposition to adversaries' motion, the litigant's traverse,

etc.); Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315

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As to Plaintiff’s FTCA claims, Plaintiff’s challenges were

disposed in the following fashion: (a) Plaintiff’s claims based on

respondeat superior theory asserted against his current and former

wardens and also asserted against Defendant Lopez on the basis of

her supervisory position were dismissed with prejudice, as falling

outside the scope of the FTCA; (b) all other Plaintiff’s challenges

based on the acts of Defendants Lopez, Elias and Bourton were

dismissed without prejudice, with instructions to: (i) state facts

suggesting that these individuals were government employees rather

than contractors, (ii) clarify the sum, if any, Plaintiff was

seeking in his administrative FTCA proceedings, (iii) clarify the

sum Plaintiff is seeking now, under the FTCA, and (iv) clarify

whether Plaintiff raise the same challenges during his FTCA

administrative proceeding as he is raising now in the instant

matter.

Although Plaintiff’s 94-paragraph motion cannot qualify as

Plaintiff’s amended complaint, and Plaintiff’s time to file his

amended complaint in accordance with the terms of this Court’s

prior order long expired, this Court finds it warranted to allow

Plaintiff another opportunity to submit his amended complaint

curing the shortcomings of his original pleading. The Court,

therefore, will allow Plaintiff another forty-five-day period to

(11th Cir. 2004) (same); Veggian v. Camden Bd. of Educ., 600 F.

Supp. 2d 615, 628 (D.N.J. 2009) (same). 

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file such amended complaint.

Furthermore, this Court’s examination of allegations raised in

– and/or of the heading utilized in – Plaintiff’s motion warrants

at least a brief discussion. To the degree Plaintiff’s motion,

having virtually every paragraph filled with allegations against

this Court, could be construed as Plaintiff’s motion seeking this

Court’s recusal, that motion will be denied. Under 28 U.S.C. §

455(a), "any justice, judge or magistrate [judge] of the United

States shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned." Section 455(a)

requires judicial recusal "if a reasonable person, knowing all the

circumstances, would expect that the judge would have actual

knowledge" of his/her interest or bias in a case. Liljeberg v.

Health Services Acquisition Corp., 486 U.S. 847, 860 (1988); In re

Kensington Intern. Ltd., 368 F.3d 289, 301 (3d Cir. 2004). In

making this determination, the court must consider how the facts

would appear to a "well-informed, thoughtful and objective

observer, rather than the hypersensitive, cynical, and suspicious

person." U.S. v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995); accord

Clemens v. United States District Court for the Central District of

California, 428 F.3d 1175, 1178 (9th Cir. 2005); Matter of Mason,

916 F.2d 384, 386 (7th Cir. 1990). "[B]eliefs or opinions which

merit recusal must involve an extrajudicial factor," Selkridge v.

United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004)

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(internal quotation marks and citation omitted), and the Supreme

Court has made it clear that "judicial rulings alone almost never

constitute a valid basis" for recusal. Liteky v. United States,

510 U.S. 540, 555 (1994). The reason for this rule is that

judicial decisions "in and of themselves can only in the rarest of

circumstances evidence the degree of favoritism or antagonism

required" to prove bias. Id. Consequently, a judge's prior

adverse ruling cannot verify for the bias necessary for recusal

under 28 U.S.C. § 455(a). See, e.g., Byrne v. Nezhat, 261 F.3d

1075, 1103 (11th Cir. 2001); United States v. Pearson, 203 F.3d

1243, 1277 (10th Cir. 2000); Leslie v. Grupo ICA, 198 F.3d 1152,

1160 (9th Cir. 1999); United States v. Arena, 180 F.3d 380, 398 (2d

Cir. 1999); Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993). 

This is true even if the judge consistently made adverse rulings

against the party, see McCalden v. California Library Assoc., 955

F.2d 1214, 1224 (9th Cir. 1990); United States v. Mobile Materials,

Inc., 881 F.2d 866, 877 (10th Cir. 1989), because an adverse

decision, even if it is adverse on all issues raised, is not

evidence of bias, especially when it is supported by the law and

facts. See Crenshaw v. Hodgson, 24 Fed. App’x 619, 621 (7th Cir.

2001) (citing Gleason v. Welborn, 42 F.3d 1107, 1112 (7th Cir.

1994); Byrne, 261 F.3d at 1103). Also, it should be noted that,

where issues of recusal arise, "a federal judge has a duty to sit

where not disqualified which is equally as strong as the duty to

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not sit where disqualified." Laird v. Tatum, 409 U.S. 824, 837

(1972); see also Clemens, 428 F.3d at 1179; Sensley, 385 F.3d at

598-99; Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995). Here,

the record does not support a finding of an extrajudicial factor

causing impartiality or any degree of favoritism or antagonism on

the part of this Court, so as to make fair judgment in this

proceeding unlikely, moreover impossible. Indeed, this Court's

preservation and careful parceling of Plaintiff's claims and this

Court’s extensive guidance have given Plaintiff a full and fair

opportunity to litigate his claims. 

To the extent Plaintiff’s motion could be construed as a

motion for reconsideration of this Court’s prior determination,

Plaintiff’s motion will be granted in form and denied in

substance.2 A motion for reconsideration is a device of limited

utility. There are only four grounds upon which a motion for

reconsideration might be granted: (a) to correct manifest errors of

law or fact upon which the judgment was based; (b) to present

2

 The Court of Appeals guided that a litigant's motion for

reconsideration should be deemed "granted" when the court (the

decision of which the litigant is seeking a reconsideration of)

addresses the merits — rather than the mere procedural propriety

or lack thereof- of that motion. See Pena-Ruiz v. Solorzano, 281

Fed. App'x 110, 111, n.1 (3d Cir. 2008). However, the very fact

of the court's review does not prevent the court performing such

reconsideration analysis (of the original application, as

supplanted by the points raised in the motion for

reconsideration) from reaching a disposition identical — either

in its rationale or in its outcome, or in both regards — to the

court's decision previously reached upon examination of the

original application. See id.

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newly-discovered or previously unavailable evidence; (c) to prevent

manifest injustice; 8 and (d) to accord the decision to an

intervening change in prevailing law. See 11 Charles A. Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §

2810.1 (2d ed. 1995); see also Harsco Corp. v. Zlotnicki, 779 F.2d

906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986)

(purpose of motion for reconsideration is to correct manifest

errors of law or fact or to present newly discovered evidence). 

"To support reargument, a moving party must show that dispositive

factual matters or controlling decisions of law were overlooked by

the court in reaching its prior decision." Assisted Living

Associates of Moorestown, L.L.C., v. Moorestown Tp., 996 F. Supp.

409, 442 (D.N.J. 1998). In contrast, mere disagreement with the

district court's decision is an inappropriate ground for a motion

for reconsideration: such disagreement should be raised through the

appellate process. See id. (citing Bermingham v. Sony Corp. of

America, Inc., 820 F. Supp. 834, 859 n.8 (D.N.J. 1992), aff'd, 37

F.3d 1485 (3d Cir. 1994); G-69 v. Degnan, 748 F. Supp. 274, 275

(D.N.J. 1990)); see also Drysdale v. Woerth, 153 F. Supp. 2d 678,

682 (E.D. Pa. 2001) (a motion for reconsideration may not be used

as a means to reargue unsuccessful theories). Consequently, "[t]he

Court will only entertain such a motion where the overlooked

matters, if considered by the Court, might reasonably have resulted

in a different conclusion." Assisted Living, 996 F. Supp. at 442;

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see also Continental Cas. Co. v. Diversified Indus., Inc., 884 F.

Supp. 937, 943 (E.D. Pa. 1995) ("[M]otions for reconsideration

should be granted sparingly"); Edward H. Bohlin, Co. v. Banning

Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993) (a district court "has

considerable discretion in deciding whether to reopen a case under

Rule 59(e)"). Here, Plaintiff’s lengthy motion painstakingly

details Plaintiff’s disagreement with this Court as to what the

governing legal regime is (or should be). However, such

disagreement should be saved for Plaintiff’s appellate proceedings,

if such are initiated. See Assisted Living, 996 F. Supp. at 442.

Finally, to the extent Plaintiff’s motion could be construed

as an application for certification of interlocutory appeal to the

United States Court of Appeals for the Third Circuit, Plaintiff’s

motion will be denied as without merit. A litigant may apply for

interlocutory review of an otherwise non-appealable district court

order by petitioning the district court to certify its order to the

appropriate appellate court pursuant to 28 U.S.C. § 1292(b).3 To

obtain certification, a movant must show that there is "a

controlling question of law as to which there is a substantial

3

 If the district court certifies its order for

interlocutory review, the litigant must apply for appellate

review within ten days of the order's issuance. See 28 U.S.C. §

1292(b). The court of appeals then has largely unfettered

discretion to hear the appeal. See Katz v. Carte Blanche Corp.,

496 F.2d 747, 754 (3d Cir. 1974) (observing that appellate

court's discretion to grant leave to appeal may be as broad as

that of Supreme Court on certiorari).

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ground for difference of opinion and that an immediate appeal may

materially advance the ultimate termination of the litigation . .

. ." 28 U.S.C. § 1292(b); Katz v. Carte Blanche Corp., 496 F.2d at

754. Interlocutory appeal is meant to be used sparingly and only

in exceptional cases where the interests cutting in favor of

immediate appeal overcome the presumption against piecemeal

litigation. See SEC v. Lucent Techs., Inc., 2009 U.S. Dist. LEXIS

107098 (D.N.J. Nov. 16, 2009); Hulmes v. Honda Motor Co., 936 F.

Supp. 195, 208 (D.N.J. 1996) (citing 16 Charles A. Wright, et al.,

Federal Practice and Procedure § 3929, at 134 (1977)). Merely

questioning a court's ruling is insufficient. See Kapossy v.

McGraw-Hill, Inc., 942 F. Supp. 996, 1001 (D.N.J. 1996). The

district court may exercise considerable discretion in determining

whether a particular order is appropriate for interlocutory review. 

See Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976); Katz, 496

F.2d at 754. Here, interlocutory appellate review of this Court’s

prior or instant decision would not materially advance the

termination of this dispute, because even reversal by the Court of

Appeals would still leave Plaintiff's claims, which are amenable to

cure by a mere repleading, wholly unresolved. Accordingly,

Plaintiff has not made the requisite showing that the "exceptional"

grant of interlocutory appeal is warranted in this case. See SEC

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v. Lucent Techs., Inc., 2009 U.S. Dist. LEXIS 107098 at *28.4

For the foregoing reasons, Plaintiff’s motion will be denied,

and Plaintiff will be allowed another forty-five day period to

state his challenges in accordance with the guidance provided to

him by this Court. However, the Court’s discussion would be

incomplete without pointing out to Plaintiff that, in the event

Plaintiff wishes to waive his opportunity to amend his pleading

(e.g., because Plaintiff wishes to withdraw his claims in order to

insist that pure respondeat superior challenges against Plaintiff’s

wardens or Defendant Lopez are cognizable within the meaning of the

FTCA or Bivens, and/or if Plaintiff wishes to forego his claims

claims in order to insist that his disagreement or disappointment

with the medical treatment he received suffices to state a Bivens

claim, and/or if Plaintiff concedes that he did not exhaust his

claims against Defendant Elias administratively with regard to

Defendant Elias’ alleged denial of pain-killers to Plaintiff,

and/or if Plaintiff has no other facts to state showing that

Defendants were deliberately indifferent to his medical except the

4

 To the extent Plaintiff’s references to “declaratory

judgment” made in the motion could be construed as Plaintiff’s

desire to seek declaratory relief, Plaintiff’s references are

misplaced, since the issues litigated in the instant proceedings

are the alleged denials of medical care for the purposes of 

Bivens and the FTCA, and Plaintiff’s interest in having this

Court “declared unjust” have no common factual predicate with the

claims litigated in this matter. In other words, in the event

Plaintiff wishes to raise challenges against this Court, he

should do so by means of a new and separate civil complaint.

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fact stated in his original complaint, and/or if Plaintiff concedes

that Defendants Elias, Bourton and Lopez were not government

employees but merely contractors, and/or if Plaintiff concedes that

his FTCA challenges raised administratively did not seek any “sum

certain,” and/or if Plaintiff concedes that his challenges

exhausted administratively differed, content-wise, from the claims

raised in the instant matter), in such event, Plaintiff has the

right to waive his opportunity to file an amended pleading in this

action and to stand on his claims as they were asserted in his

original complaint, hence ripening Plaintiff’s position (that this

Court erred in dismissing certain Plaintiff’s claims with prejudice

and other Plaintiff’s claims without prejudice) for appellate

review. See Lucas v. Twp. of Bethel, 319 F.3d 595, 600 (3d Cir.

2003) (the litigant who elects to stand on his pleading renders the

dismissal without prejudice appealable). 

IT IS, therefore, on this 1st day of March 2012,

ORDERED that the Clerk shall reopen this matter for the

purposes of this Court’s examination of Plaintiff’s motion, Docket

Entry No. 4, by making a new and separate entry on the docket

reading, “CIVIL CASE REOPENED”; and it is further

ORDERED that Plaintiff’s motion, Docket Entry No. 4, is

denied; and it is further

ORDERED that the Court’s prior ruling, see Docket Entries Nos.

2 and 3, shall remain in force; and it is further

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ORDERED that Plaintiff’s time to submit his amended complaint

(in accordance with the guidance provided herein and in this

Court’s prior opinion, Docket Entry No. 2) is extended; and it is

further

ORDERED that Plaintiff may submit his amended complaint within

forty-five days from the date of entry of this Memorandum Opinion

and Order; and it is further

ORDERED that the Clerk shall administratively terminate this

matter by making a new and separate entry on the docket reading,

“CIVIL CASE TERMINATED”; and it is further

ORDERED that administrative termination is not a final

dismissal on merits and, in the event Plaintiff timely submits his

amended complaint, the Court will direct the Clerk to reopen this

matter and will screen Plaintiff’s amended complaint on merits; and

it is further

ORDERED that administrative termination shall have no effect

on the timeliness of Plaintiff’s challenges, provided that

Plaintiff handed his original complaint to his prison officials for

mailing to this Court within the periods of limitations governing

Plaintiff’s claims; and it is further

ORDERED that no statement made in this Memorandum Opinion and

Order shall be construed as indicative of this Court withdrawing

its jurisdiction over this matter; and it is finally

ORDERED that the Clerk shall serve this Memorandum Opinion and

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Order upon Plaintiff by certified mail, return receipt requested,

and shall enclose in said mailing a blank civil complaint form.

s/Renée Marie Bumb 

RENÉE MARIE BUMB,

United States District Judge

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