ALI-X v. ALL THE EMPLOYEES OF MAIL ROOM STAFFS

Filing 112

OPINION. Signed by Judge Noel L. Hillman on 9/14/2020. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
KASEEM ALI-X,
:
:
Plaintiff,
:
Civ. No. 12-3147 (NLH) (KMW)
:
v.
:
OPINION
:
DAVID MCKISHEN, et al,`
:
:
Defendants.
:
______________________________:
APPEARANCES:
Kaseem Ali-X, 000422722B
New Jersey State Prison
PO Box 861
Trenton, NJ 08625
Plaintiff pro se
Gurbir S. Grewal, Attorney General of New Jersey
Kai W. Marshall-Otto, Deputy Attorney General
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Counsel for Defendants
HILLMAN, District Judge
On December 10, 2019, the Court granted summary judgment to
Defendants R. Ayars, E. Brainard, R. Charlesworth, K. Davis, P.
Davis, Z. Ennals, J. Ginyard, C. Jones, J. Kilman, B. Malpica,
M. Maniscalo, B. McIver, T. Miller, H. Ortiz, C. Pierce, D.
Ruiz, J. Thompson, L. Vastano, D. Wells, C. Williams,
Christopher Holmes, and David McKishen.

ECF No. 100.

The Court

dismissed defendants J. Seguinot, Karen Balicki, I. Reyes, and

Vastano after Plaintiff failed to explain his failure to serve
them with the complaint.

ECF Nos. 104, 108.

Plaintiff moves to reinstate Defendants Seguinot, Karen
Balicki, and I. Reyes and to belatedly serve them with the
amended complaint.

ECF No. 110.

defendant J. Elbuef.

He also objects to dismissing

Id.

For the reasons that follow, the Court will grant the
motion for relief in part.

The Court will vacate the order

dismissing Defendants Seguinot, Balicki, and Reyes, but
Plaintiff must show cause within 30 days why these defendants
should not be dismissed either for lack of service or lack of
prosecution.
I.

BACKGROUND
Plaintiff filed his original complaint against unnamed

mailroom employees at South Woods State Prison (“SWSP”) on May
29, 2012, alleging his legal mail had been opened outside of his
presence.

ECF No. 1.

The Honorable Jerome B. Simandle, D.N.J., 1

permitted the claim to proceed but required Plaintiff to file an
amended complaint “identifying by name the fictitious defendants
who are alleged to have engaged in a pattern and practice of
opening his properly-marked legal mail outside of his presence.
. . .”

ECF No. 2 at 4.

Plaintiff submitted an amended

1

The matter was reassigned to the undersigned on August 8, 2019.
ECF No. 90.
2

complaint asserting that he had written Christopher Holmes, the
SWSP Administrator at the time, former Department of Corrections
Commissioner Gary Lanigan, and former New Jersey Attorney
General Jeffrey Chiesa asking for the names of the SWSP
employees who had been working in the mailroom on the identified
dates, but they never responded.

ECF No. 9.

Judge Simandle

permitted the amended complaint to proceed against Karen Balicki
and Defendant Holmes on May 9, 2013.

ECF No. 10.

Summonses were issued to Defendants Balicki and Holmes on
May 10, 2013.

ECF No. 12.

Holmes on August 16, 2013.

The U.S. Marshals served Defendant
ECF No. 14.

The summons sent to

Defendant Balicki had been returned as unexecuted on May 29,
2013.

ECF No. 13.

The Marshal certified service on Balicki had

not been completed because “NJDOC employee retired.”

Id.

On February 18, 2016, Plaintiff moved to amend the
complaint again.

ECF No. 57.

The second amended complaint

included the names of the individual mailroom workers and added
additional claims against Defendants.

Id.

Judge Simandle

permitted Plaintiff to substitute the names of the individual
mailroom workers for the John Doe defendants but denied
Plaintiff’s attempt to add new claims to the complaint.
60.

ECF No.

Summonses were issued to R. Ayars, E. Brainard, R.

Charlesworth, K. Davis, P. Davis, Z. Ennals, J. Ginyard, C.
Jones, J. Kilman, B. Malpica, M. Maniscalo, B. McIver, David
3

Mckishen, T. Miller, H. Ortiz, C. Pierce, I. Reyes, D. Ruiz, J.
Seguinot, J. Thompson, Vastano, L. Vastano, D. Wells, and C.
Williams on December 5, 2016.

ECF No. 65.

The summonses issued

to Defendants Reyes and Seguinot were returned as unexecuted on
January 25, 2017.

ECF No. 67. 2

Summonses were not issued for

Defendant Elbuef through an administrative error.
105.

See ECF No.

The other defendants were served and answered the

complaint on February 15, 2017. 3

ECF No. 71.

The Court granted summary judgment to the represented
Defendants on December 10, 2019.

ECF No. 100.

In preparing to

close the case, the Court noted that Defendants Reyes, Seguinot,
Balicki, Elbuef had never been served with the second amended
complaint.

On December 11, 2019, the Court ordered Plaintiff to

show cause within 14 days why Defendants Reyes, Seguinot, and
Balicki should not be dismissed for failure to serve.

See ECF

Nos. 101 & 102.

2

The Marshals stated that “[a]s of January 17 Roster no J.
Seguinot @ South woods 1/11/17 and 1132 hours.” ECF No. 67 at
1. The Marshal stated Defendant Reyes could not be served
because there was “[n]o Officer Reyes on South woods officer log
1/11/17 1130hours.” Id. at 4.
3

The second amended complaint listed two proposed defendants
with similar names, “Vastano” and “L. Vastano,” separately in
the caption. ECF No. 57 at 5. ECF No. 106. The Clerk of the
Court, relying on the caption of the second amended complaint,
presumed these names to refer to two separate people and issued
two sets of summonses to be served by the Marshals. ECF No. 65.
The New Jersey Attorney General’s Office entered an appearance
on behalf of “L. Vastano,” but not “Vastano.” ECF No. 69.
4

On December 13, 2019, Plaintiff filed a “certification of
service” “concerning loss personal property caused by
Defendant’s Holmes [sic] purposeful abuse of Grievance system as
added to previous submitted Responsive Statement of Material
Facts.”

ECF No. 103 at 2.

Plaintiff argued that Defendant

Holmes had refused to address the grievances he submitted about
the alleged opening of his legal mail and the alleged loss of
his personal property.

Id. 4

On December 31, 2019, the Court dismissed Plaintiff’s
claims against Reyes, Seguinot, and Balicki because Plaintiff
had not responded to the orders to show cause.
(citing Fed. R. Civ. P. 4(m)).

ECF No. 104

The Court also ordered Plaintiff

to show cause why Defendant Elbuef should not be dismissed for
failure to serve, ECF No. 105, and to clarify whether “L.
Vastano” and “Vastano” were two separate individuals and, if so,
why “Vastano” should not be dismissed, ECF No. 106.
On January 6, 2020, Plaintiff requested three 285 forms so
he could serve three defendants.

ECF No. 107.

He did not

otherwise respond to the Court’s order to show cause, so the

4

In addition to being an unauthorized sur-reply, this filing did
not impact the Court’s summary judgment decision because the
Court did not reach Defendants’ argument that Plaintiff had
failed to exhaust his administrative remedies. ECF No. 99 at 5
n.1. Rather, the Court concluded Plaintiff had failed to prove
Defendants’ personal involvement. Moreover, the second amended
complaint did not contain a loss of property claim.
5

Court dismissed “Vastano” as a party on January 28, 2020.
No. 108.

ECF

Plaintiff subsequently wrote to the Court on January

31, 2020 asking for more time to respond to the order to show
cause.

ECF No. 109.

Plaintiff filed the instant motion “for relief from Orders
and for service of Summary Judgment” on February 22, 2020.
No. 110.

ECF

He requested relief from this Court’s orders

dismissing Plaintiff’s claims against Reyes, Seguinot, and
Balicki, ECF No. 104, and requiring him to show cause why
Defendant Elbuef should not be dismissed for failure to serve,
ECF No. 105.

ECF No. 110 at 3 (citing Fed. R. Civ. P.

60(b)(1),(3),(6)).

He also asks the Court to provide and to

serve Reyes, Seguinot, Balicki, and Elbuef with the second
amended complaint.

Id.

Plaintiff asserts that he received the Court’s order dated
November 21, 2019 that granted Defendants until December 6, 2019
to file their summary judgment reply papers.
ECF No. 98.

Id. at 5; see also

He states that he did not receive any other orders

from the Court until January 4, 2020.

Id.

This mailing

included the order dismissing Reyes, Seguinot, and Balicki, ECF
No 104; the order to show cause for Elbuef, ECF No. 105; and the
order to show cause for Vastano, ECF No. 106.

Id.

Plaintiff

claims he did not receive the Court’s December 10, 2019 opinion
and order granting Defendants’ summary judgment motion or the
6

orders to show cause regarding service.

Id.

The defendants who

had entered an appearance in the case filed a letter objecting
to the motion.
II.

ECF No. 111.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 60(b) sets forth the

circumstances under which a court “may relieve a party or its
legal representative from a final judgment, order, or proceeding
. . . .”

Rule 60(b) ‘applies only to final judgments and

orders.”

Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118, 125 (3d

Cir. 2004) (internal quotation marks omitted); see also Kapco
Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d 151, 154 (7th Cir.
1985) (“Rule 60(b) must be limited to review of orders that are
independently ‘final decisions’ under 28 U.S.C. § 1291.”).
The orders to which Plaintiff objects were not final orders
because they did not resolve all claims against all parties. “A
‘final decision’ is ‘one which ends the litigation on the merits
and leaves nothing for the court to do but execute the
judgment.’”

Weber v. McGrogan, 939 F.3d 232, 236 (3d Cir. 2019)

(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
The Court therefore cannot consider Plaintiff’s arguments under
Rule 60(b); however, the Court will consider them as a motion
for reconsideration in the interests of justice.
A court may grant a motion for reconsideration if the
moving party shows one of the following: (1) an intervening
7

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 F. App’x 554, 560 (3d Cir. 2002) (quoting Max's
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
III. DISCUSSION
Plaintiff argues he should be relieved from the Court’s
orders dismissing certain because he never received notice of
the orders to show cause.

Because due process requires notice

and an opportunity to respond, Mathews v. Eldridge, 424 U.S.
319, 332-35 (1976), the Court will grant the motion for
reconsideration only to the extent that Plaintiff seeks relief
from the order dismissing Defendants Seguinot, Balicki, and
Reyes.

ECF No. 104.

The Court will not order service at this

time; Plaintiff must still respond to the orders to show cause
regarding his failure to serve and prosecute his claims against
Seguinot, Balicki, Elbuef and Reyes.

Plaintiff only argues that

he never received notice of the Court’s summary judgment
decision in favor of “L. Vastano.”

ECF No. 110 at 5-6.

He does

not argue that “Vastano” is a separate individual from “L.
Vastano.”

Id.

Therefore, the Court will not reinstate

“Vastano” as a defendant.

8

To that end, the Court vacates its December 31, 2019 Order
dismissing Defendants Seguinot, Balicki, and Reyes. 5

Plaintiff

is ordered to show cause why Defendants Seguinot, Balicki,
Elbuef, and Reyes should not be dismissed for failure to serve
or for lack of prosecution.

Fed. R. Civ. P. 4; Fed. R. Civ. P.

41; see also Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863,
868 (3d Cir. 1984).

The Court shall direct the Clerk to send a

copy of this opinion and order, as well as the Court’s decision
on summary judgment, to Plaintiff by certified mail to ensure
Plaintiff receives a copy.

The motion for reconsideration is

denied to the extent it requests service on Defendants.
IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s motion for

reconsideration is granted in part.

Defendants Seguinot,

Balicki, and Reyes shall be reinstated.

Plaintiff is ordered to

show cause within 30 days of this Order why Defendants Seguinot,
Balicki, Elbuef, and Reyes should not be dismissed for failure
to serve or for lack of prosecution.
An appropriate Order follows.

Dated: September 14, 2020
At Camden, New Jersey

5

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

Defendant Elbuef was never dismissed.
9