SALAAM v. WARDEN GARY MERLIN et al

Filing 61

ORDERED that Deft's motion in limine 55 is converted to a motion for summary judgment. Pltf's opposing evidence must be filed by 7/28/2011; any reply by Deft is due by 8/4/2011. ORDERED that the commencement of jury trial shall be ADJOURNED from 7/19/2011 until a new date to be set, if necessary, after the summary judgment motions are determined. Signed by Judge Jerome B. Simandle on 7/19/2011. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

NASIR SALAAM,
Plaintiff,

Civil Action
No. 08-1248 (JBS-AMD)

v.
WARDEN GARY MERLINE, et al.,

ORDER

Defendants.

This matter came before the Court at a hearing on July 18,
2011 upon the motion of Defendant in limine [Docket Item 55],
filed June 30, 2011, as to which Plaintiff has filed no
opposition; and
It appears, for reasons expressed at the hearing, in the
presence of Nasir Salaam, Plaintiff Pro Se, and Donna Taylor,
Assistant Atlantic County Counsel, that Defendant is seeking to
terminate Plaintiff's case on various grounds raised in the in
limine motion, and that the motion in limine should be converted
into a motion for summary judgment under Rule 56 in three
aspects:
1.

Defendant's motion that Plaintiff has failed to exhaust
his administrative remedies pursuant to the Prison
Litigation Reform Act and judgment should be entered in
Defendant's favor (originally Point IV of Defendant's
in limine motion);

2.

Defendant's motion that Defendant Gary Merline cannot
be held liable under Section 1983 due to a lack of

factual evidence against him, and that judgment should
be entered in his favor (Point II of the in limine
motion); and
3.

Defendant's motion to bar Plaintiff from presenting
evidence against the “unidentified corrections officers
S.E.R.T. team members” who have not been named as
defendants, and that these unnamed parties should be
dropped from this case (Point III of motion in limine).

Because these above aspects of the in limine motion are more
properly regarded as a summary judgment motion, this Court will
treat the motions as summary judgment motions pursuant to Rule
56(f)(3), Fed. R. Civ. P., which provides:

“After giving notice

and a reasonable time to respond, the court may... consider
summary judgment on its own.”

Therefore, although Plaintiff

Salaam has requested only three extra days, this Court will give
him ten additional days for his filing of opposition regarding
the above summary judgment motions.

Mr. Salaam's opposition will

be due July 28, 2011, and any reply by Defendant shall be due
August 4, 2011.
With respect to the remaining aspects of Defendant's motion
in limine (Points I, V, and VI), Plaintiff's time for opposition
has expired but it will nonetheless be extended for ten
additional days until July 28, 2011.
The record further reflects that at the hearing on July 18,
2011, Defendant presented a copy of Plaintiff's response to the
Request for Admissions, which forms a basis of the motion for
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summary judgment regarding Plaintiff's failure to file an
administrative grievance, which was acknowledged by Plaintiff
Salaam to be a true copy of his responses and which was marked as
Exhibit D-1 at the hearing.

Plaintiff must therefore confront

his own admissions with respect to failure to present an inmate
grievance under the established procedure as required by the
Prison Litigation Reform Act.
The trial, previously scheduled for July 18, 2011 and
adjourned until July 19, 2011, will be further adjourned to a new
date to be set in the event that this case survives summary
judgment.
THEREFORE, IT IS, this

19th

day of July, 2011, hereby

ORDERED that Defendant's motion in limine is converted to a
motion for summary judgment as indicated above, as to which
Plaintiff's opposing evidence must be filed with the Clerk of
Court and served upon defense not later than July 28, 2011; any
reply by Defendant is due August 4, 2011; and
IT IS FURTHER ORDERED that the commencement of jury trial
shall be ADJOURNED from July 19, 2011 until a new date to be set,
if necessary, after the summary judgment motions are determined.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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