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

Filing 115

OPINION. Signed by Judge Noel L. Hillman on 11/3/2020. (dmr)

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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.

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Ruiz, J. Thompson, L. Vastano, D. Wells, C. Williams,
Christopher Holmes, and David McKishen on Plaintiff Kaseem AliX’s second amended complaint.

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 filed a motion for reconsideration to the
dismissal of Defendants Seguinot, Karen Balicki, and I. Reyes
because he did not receive the Court’s order to show cause.
No. 110.

ECF

The Court reinstated Defendants Seguinot, Balicki, and

Reyes and ordered Plaintiff to show cause within 30 days why
those defendants and Defendant J. Elbuef should not be dismissed
either for lack of service or lack of prosecution.

ECF No. 113.

Plaintiff has not filed a response to the Court’s order.
Therefore, the Court will dismiss those defendants for failure
to prosecute.

The second amended complaint shall be dismissed

with prejudice.
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

1

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

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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

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.

Chief Judge

Simandle permitted the amended complaint to proceed against
Karen Balicki and Mr. 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.

Defendant Balicki’s

summons was returned as unexecuted on May 29, 2013.

ECF No. 12.

The Marshal certified service on Defendant Balicki had not been
completed because “NJDOC employee retired.”

Id.

Plaintiff

wrote to Defendant Holmes’ attorney on November 7, 2013
requesting Defendant Balicki’s most recent address.

ECF No. 20-

4.
Defendant Holmes moved to dismiss the complaint on October
21, 2013.

ECF No. 18.

In December 2013, Plaintiff moved to
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stay the proceedings pending a motion to compel Defendant Holmes
to provide “the names and currently [sic] locations of the
unknown Defendants listed as ‘mail room staffs’ in this suit . .
. .”

ECF No. 22 at 2.

On April 25, 2014, Chief Judge Simandle

permitted the complaint to proceed against Defendant Holmes in
his individual capacity and denied the motion to stay.
27.

ECF No.

Chief Judge Simandle noted that “Defendant Balicki has not

been properly served . . . . Because Balicki has not been served
and, thus, has not responded to Plaintiff’s Amended Complaint,
the Court will not adjudicate claims against her at this time.”
Id. at 9 n.2.

Four months later, Plaintiff filed a letter on

August 27, 2014 asking the Clerk to issue a subpoena to
Commissioner Lanigan asking him to provide Defendant Balicki’s
current address.

ECF No. 35.

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.

Chief 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.
61.

ECF No.

Once again, Chief Judge Simandle specifically noted that

“Defendant Balicki has never been served a copy of the
complaint.”

ECF No. 60 at 3 n.1.
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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
McKishen, T. Miller, H. Ortiz, C. Pierce, I. Reyes, D. Ruiz, J.
Seguinot, J. Thompson, Vastano, L. Vastano, 2 D. Wells, and C.
Williams on December 5, 2016.

ECF No. 65.

The Clerk did not

issue summonses to J. Elbuef or reissue summonses for Ms.
Balicki.

Id.

The summonses issued to Defendants Reyes and

Seguinot were returned unexecuted on January 25, 2017.
No. 67. 3

See ECF

The New Jersey Attorney General’s Office entered an

appearance for all defendants except Balicki, Reyes, Seguinot,
and Elbuef.

ECF No. 69.

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

ECF No. 100.

In preparing to

2

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.
Defendant “Vastano” was terminated as a party on January 28,
2020. ECF No. 108. Unlike the other four unserved defendants,
Plaintiff did not object to this termination. ECF No. 112 at 8.
3

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.
5

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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.
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.

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.

ECF No. 104 (citing Fed. R. Civ. P. 4(m)).

The

Court also ordered Plaintiff to show cause why Defendant Elbuef
should not be dismissed for failure to serve.

ECF No. 105.

On January 6, 2020, Plaintiff requested three 285 forms so
he could serve three defendants.

ECF No. 107.

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.

Shortly thereafter, Plaintiff filed a motion “for relief from
Orders and for service of Summary Judgment” on February 22,
2020.

ECF No. 110.

He requested relief from this Court’s

orders dismissing his claims against Reyes, Seguinot, and
6

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Balicki, ECF No. 104, and requiring him to show cause why
Defendant Elbuef should not be dismissed for failure to serve,
ECF No. 105.

Plaintiff argued that he did not receive any

orders from the Court between the Court’s order dated November
21, 2019 and January 4, 2020.

ECF No. 110.

On September 14, 2020, the Court granted the motion for
relief in part and reinstated Reyes, Seguinot, and Balicki as
parties.

Id.

The Court ordered the Plaintiff to show cause why

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

The

Clerk sent the opinion and order, as well as the December 10,
2019 opinion and order granting Defendants’ summary judgment
Id. 4

motion, to Plaintiff by certified mail.
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 41(b) provides that

involuntary dismissal is appropriate “[f]or failure of the
plaintiff to prosecute or to comply with these rules or any
order of the court[.]”

A district court should consider six

factors when determining whether to dismiss a case under Rule
41(b).

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868

(3d Cir. 1984). The relevant factors are:

4

Receipt number 70192970000201952246. ECF No. 114. The United
States Postal Service tracking system confirms the mail was
delivered to New Jersey State Prison on September 18, 2020.
7

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(1) the extent of the party’s personal responsibility;
(2) the prejudice to the adversary caused by the failure
to meet scheduling orders and respond to discovery; (3)
a history of dilatoriness; (4) whether the conduct of
the party or the attorney was willful or in bad faith;
(5) the effectiveness of sanctions other than dismissal,
which entails an analysis of alternative sanctions; and
(6) the meritoriousness of the claim or defense.

Id. (emphasis omitted).

“None of the Poulis factors is alone

dispositive, and it is also true that not all of the factors
need to be satisfied to justify dismissal of a complaint for
lack of prosecution.”

Hildebrand v. Allegheny Cty., 923 F.3d

128, 132 (3d Cir. 2019).
III. DISCUSSION
Eight years after this case was initiated in May 2012,
Plaintiff has failed to serve four defendants.

The Court gave

Plaintiff notice and opportunity to explain the lack of service
and why this case should not be dismissed for lack of
prosecution.

ECF No. 113.

Plaintiff did not file a response

within the time set by the Court.

Therefore, the Court proceeds

to the Poulis factors without his input.
A.

The Extent of the Party’s Personal Responsibility
The Court first considers Plaintiff’s personal

responsibility for failing to serve the four defendants.
Although Plaintiff was not at fault for the administrative error
that resulted in the lack of summonses to Elbuef, he does bear
the majority of the responsibility for failing to prosecute his
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case against Defendants Balicki, Reyes, Seguinot, and Elbuef.
At no time between the issuing of the summonses on December 5,
2016 and the Court’s orders to show cause in December 2019 did
Plaintiff inform the Court that four of his defendants were
missing from the case.

The notice of appearance filed by the

New Jersey Attorney General’s Office clearly indicated which
defendants it was representing.

ECF No. 69.

The Court acknowledges that Plaintiff did request a
subpoena be sent to former Commissioner Lanigan in 2014 in order
to obtain Defendant Balicki’s address, ECF No. 35, but Plaintiff
failed to follow up on that request even after Chief Judge
Simandle specifically noted that Defendant Balicki still had not
been served in 2016, ECF No. 60 at 3 n.1.

Plaintiff asserted in

his motion for relief from judgment that “[a]t no time [did] I
receive[] any information that any Defendants were not served
via paralegals.”

ECF No. 110 at 6.

Apart from the returned

unexecuted summonses, the Court informed Plaintiff twice that he
had not served Defendant Balicki.
60 at 3 n.1.

ECF No. 27 at 9 n.2; ECF No.

The ultimate responsibility to make sure the case

is progressing belongs to Plaintiff.

See Briscoe v. Klaus, 538

F.3d 252, 258-59 (3d Cir. 2008) (“It is logical to hold a pro se
plaintiff personally responsible for delays in his case because
a pro se plaintiff is solely responsible for the progress of his
case . . . .”).

This factor weighs in favor of dismissal.
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B.

The Prejudice to the Adversary
The second Poulis factor requires the Court to consider the

prejudice to the adversary.
dismissal.

This factor weighs in favor of

See Adams v. Trustees of N.J. Brewery Employees’

Pension Tr. Fund, 29 F.3d 863, 873-74 (3d Cir. 1994) (“Evidence
of prejudice to an adversary would bear substantial weight in
support of a dismissal or default judgment.” (internal quotation
marks omitted)).

“[P]rejudice is not limited to ‘irremediable’

or ‘irreparable’ harm.

It also includes ‘the burden imposed by

impeding a party’s ability to prepare effectively a full and
complete trial strategy.’”

Briscoe, 538 F.3d at 259 (quoting

Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)).
Plaintiff alleged that legal mail was opened outside of his
presence on May 24, 2010; June 12, 2010; July 9, 2010; July 23,
2010; August 13, 2010; March 27, 2011; July 11, 2011; September
27, 2011; and September 30, 2011.

Were the Court to order the

four unserved defendants to answer the second amended complaint,
they would be forced to defend themselves against allegations
dating back to over a decade ago.

This passage of time would be

highly prejudicial to the four unserved defendants as their
ability to prepare a “full and complete” defense would
doubtlessly be impeded by “the irretrievable loss of evidence,
the inevitable dimming of witnesses’ memories, or the excessive
and possibly irremediable burdens or costs imposed on the
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opposing party.”
marks omitted).

Adams, 29 F.3d 863 at 874 (internal quotation
In addition, the defendants to whom the Court

has already awarded summary judgment would be dragged back into
litigation.

“[T]he Defense has an interest in achieving

finality in a meritless case that has already proceeded for
eight years.”

ECF No. 111.

Therefore, this factor supports

dismissal.
C.

History of Dilatoriness
The third factor, a history of dilatoriness, does not

support dismissal.

Plaintiff has aggressively pursued his

claims against the answering defendants. 5

The Court weighs this

factor in Plaintiff’s favor.
D.

Willfulness or Bad Faith
There are no facts to warrant an inference of bad faith or

willfulness.
behavior.”

“Willfulness involves intentional or self-serving
Adams, 29 F.3d at 875.

Conduct that is “merely

negligent or inadvertent” is not “contumacious,” Briscoe, 538
F.3d at 262, and the “absence of a good faith effort to
prosecute . . . does not necessarily amount to willfulness or
bad faith as [the Third Circuit] has defined it.”

5

Adams, 29

Plaintiff’s active pursuant of the answering defendants
contrasts with his failure to prosecute his claims against the
four unserved defendants, underscoring the Court’s conclusion
that Plaintiff bears most of the responsibility for failure to
serve.
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F.3d at 876.

While Plaintiff may be inexcusably negligent, that

is not enough to meet the Poulis standard of willfulness.

The

Court weighs this factor in Plaintiff’s favor.
E.

Effectiveness of Other Sanctions
As dismissal with prejudice is an extreme sanction, the

fifth Poulis factor requires the Court to consider the
effectiveness of alternative sanctions.

Since Plaintiff is

proceeding pro se and in forma pauperis, monetary sanctions
would not be an effective alternative.

See Briscoe, 538 F.3d at

262 citing Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir.
2002)).

No evidentiary sanctions would be able to mitigate the

prejudice caused by Plaintiff’s dilatory behavior or
delinquency.

Hildebrand v. Allegheny Cty., 923 F.3d 128, 136

(3d Cir. 2019).

Therefore, the Court finds no sanction short of

dismissal would be effective.
F.

Meritoriousness of the Claims
Finally, the Court considers the meritoriousness of the

Plaintiffs’ claims. “Generally, in determining whether a
plaintiff’s claim is meritorious, we use the standard for a Rule
12(b)(6) motion to dismiss for failure to state a claim.”
Briscoe, 538 F.3d at 263.
The claims against all defendants were permitted to proceed
past Chief Judge Simandle’s review under 28 U.S.C. § 1915.
Because Plaintiff has satisfied this “moderate” standard, Adams,
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29 F.3d at 876, the Court concludes this factor weighs against
dismissal.
G.

Balancing
Three of the Poulis factors weigh in favor of dismissal and

three weigh against dismissal.

“[T]here is no ‘magic formula’

or ‘mechanical calculation’” of the factors.

Hildebrand, 923

F.3d at 137.
The Court concludes the factors in favor of dismissal
outweigh those against dismissal.

The Court gives great weight

to the prejudice to the potential adversaries if the Court were
to order them to answer the complaint now.

Although there is a

strong preference for claims to be decided on their merits,
there is nothing the Court can do to ameliorate the prejudice by
imposing a financial or evidentiary sanction against Plaintiff.
The Court also gives significant weight to Plaintiff’s
responsibility in failing to proceed his claims against the four
defendants.
Plaintiff actively litigated this complaint for eight
years, for example by filing discovery motions and motions to
compel.

The lack of bad faith, non- dilatoriness, and potential

merit of the claims do support the complaint remaining active,
but the prejudice to defendants and the lack of alternative
sanctions tip the scales in favor of dismissal.

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IV.

CONCLUSION
For the reasons set forth above, Defendants Seguinot,

Balicki, Reyes, and Elbuef are dismissed for lack of
prosecution.

Fed. R. Civ. P. 41.

The second amended complaint

is dismissed with prejudice.
An appropriate Order follows.

Dated: November 3, 2020
At Camden, New Jersey

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

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