HEFFLEY v. FEDERAL BUREAU OF PRISONS FCI FORT DIX et al

Filing 35

MEMORANDUM OPINION & ORDER denying without prejudice, 32 Motion for Summary Judgment; ORDERED that within 45 days of this Order, Plaintiff shall show cause in writing why this matter should not be dismissed for lack of service and failure to comply with this Court's orders. Signed by Judge Noel L. Hillman on 6/2/2022. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
TRAVIS HEFFLEY,
:
:
Plaintiff,
:
Civ. No. 17-3647 (NLH)(SAK)
:
v.
:
MEMORANDUM OPINION AND ORDER
:
:
FEDERAL BUREAU OF PRISONS
:
FCI FORT DIX, et al.,
:
:
Defendants.
:
______________________________:
APPEARANCES:
Travis Heffley
17225097
Otisville
Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 1000
Otisville, NY 10963
HILLMAN, District Judge
WHEREAS, Plaintiff Travis Heffley filed a complaint naming
unidentified members of the Extraction Team at FCI Fort Dix as
defendants, ECF No. 1; and
WHEREAS, the Court reviewed the complaint under 28 U.S.C. §
1915(e)(2) and concluded sua sponte dismissal was not
appropriate, ECF No. 7.

However, the Court acknowledged that

the Complaint could not be served on unknown John Doe
defendants, and thus, the Court authorized discovery pursuant to
Federal Rules of Civil Procedure 26(d) and 34(c) limited to

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discovering the identities of the John Doe members of the Fort
Dix Extraction Team.

Id.; and

WHEREAS, after Plaintiff provided the Court with names for
the John Doe defendants, the Court directed the Clerk’s Office
to substitute the named defendants and to issue U.S. Marshal 285
Forms to Plaintiff for service, ECF No. 13; and
WHEREAS, on April 14, 2021, the Clerk’s Office docketed a
notice that it had not received the 285 Forms from Plaintiff,
ECF No. 21; and
WHEREAS, on May 3, 2021, Plaintiff wrote to the Court and
said he had mailed the forms to the Clerk’s Office, ECF No. 22;
and
WHEREAS, Plaintiff filed a motion for summary judgment on
July 1, 2021 arguing that “there is no reason for delay in the
entry of final judgment. . . .

The Plaintiff Travis Heffley has

sought a monetary judgment ruling.”

ECF No. 24; and

WHEREAS, on July 2, 2021, the Court issued an order stating
that it had never received the 285 Forms that Plaintiff
originally mailed and ordered the Clerk to send 285 Forms to
Plaintiff again so that Plaintiff could send new copies to the
Clerk, ECF No. 25; and
WHEREAS, the Clerk’s Office mailed new 285 Forms to
Plaintiff on July 2, 2021, ECF No. 26; and

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WHEREAS, Plaintiff sent back the 285 Forms with a
handwritten note that stated he “completed and sent to [the
Clerk] in Nov 2020-Dec 2020.”

ECF No. 27; and

WHEREAS, Plaintiff filed a motion to amend his complaint on
October 19, 2021, ECF No. 31; and
WHEREAS, Plaintiff filed a motion for summary judgment
simultaneously with his motion to amend, ECF No. 32.

The Court

administratively terminated the summary judgment pending a
decision on the motion to amend, ECF No. 33; and
WHEREAS, Magistrate Judge Sharon A. King denied the motion
to amend as moot on May 16, 2022, ECF No. 34 (finding
“Plaintiff’s present motion seeks to add the identical
substituted defendants as new defendants; and whereas the Court
finds that Plaintiff’s requested relief was previously
granted”); and
WHEREAS, the Court will direct the Clerk to reopen the
motion for summary judgment in accordance with its prior order,
ECF No. 33; and
WHEREAS, the Court directed the Clerk’s Office to send
Plaintiff 285 Forms on three occasions: November 9, 2020 (ECF
No. 17); July 2, 2021 (ECF No. 25); and September 21, 2021 (ECF
No. 29).

The docket indicates the Clerk’s Office complied and

mailed 285 forms on these dates.

ECF Nos. 18, 26, and 30; and

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WHEREAS, there is no record of the Clerk’s Office having
received 285 forms back from Plaintiff despite Plaintiff’s
assertion he sent the forms back in November or December 2020.
ECF No. 27; and
WHEREAS, the Court has given Plaintiff several chances to
resubmit the forms for service; Plaintiff refuses to do so.

As

such, the defendants have not been served with the complaint;
and
WHEREAS, the Court cannot grant summary judgment when
defendants have not been served and have not had an opportunity
to defend themselves.

Therefore, the Court will deny the motion

for summary judgment; and
WHEREAS, in its September 21, 2021 Order, the Court
notified Plaintiff that “failure to meet the service deadlines
may result in dismissal of this action,” ECF No. 29 at 4; and
WHEREAS, Plaintiff is ordered to show cause in writing why
this matter should not be dismissed for lack of service and
failure to comply with this Court’s orders,
IT IS therefore on this 2nd day of June, 2022,
ORDERED that the Clerk shall reinstate the motion for
summary judgment, ECF No. 32; and it is further
ORDERED that the motion for summary judgment, ECF No. 32,
be, and hereby is, denied without prejudice; and it is further

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ORDERED that within 45 days of this Order, Plaintiff shall
show cause in writing why this matter should not be dismissed
for lack of service and failure to comply with this Court’s
orders; and it is finally
ORDERED that the Clerk of the Court shall send a copy of
this Order to Plaintiff by regular U.S. mail.

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

At Camden, New Jersey

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