The opinion of the court was delivered by: KATHARINE HAYDEN, District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
Pro se plaintiff filed two motions characterized as
Fed.R.Civ.P. 60(b) motions seeking relief from two Orders entered by
this Court on June 28, 2004 and on August 2, 2004, respectively.
Plaintiff asserts that his failure to file a timely motion for
reconsideration of the June 28th Order constituted excusable
neglect, warranting relief from both Orders. For the reasons that
follow, plaintiff's motions are denied.
Background and Procedural History
The above-captioned action was commenced on November 7, 2002
when plaintiff filed a civil rights complaint under
42 U.S.C. § 1983 alleging his constitutional rights were violated while he
was incarcerated at East Jersey State Prison, Rahway, New Jersey.
Particularly he alleged that the 21 named defendants and numerous "John Doe"
defendants were tampering with his meals and withholding legal
and medical documentation from him in violation of his Eighth and
Fourteenth Amendment rights. All defendants filed answers to
plaintiff's complaint and the action proceeded to discovery.
On October 1, 2003, defendants Lydell Sherrer, T.M. Power,
Richard Wyckoff and Debra Faunce ("State defendants") requested
that plaintiff produce specific documents and answer
interrogatories. Due to plaintiff's failure to comply with these
discovery requests within the time constraints of Fed.R.Civ.P.
33(b) and 34(b), State defendants filed a motion to compel
plaintiff's compliance with the discovery requests, a motion to
preclude the evidence from being introduced at trial, and a
motion to dismiss the complaint. Magistrate Judge Patty Shwartz
entered an order on December 21, 2003 mandating that plaintiff
comply with State defendants' discovery requests no later than
January 31, 2004. If plaintiff failed to comply by that date, he
was ordered to show cause by February 9, 2004 why sanctions,
including the possibility of dismissal, should not be imposed.
Plaintiff failed to comply with the December 1st order and
did not timely show cause justifying his non-compliance;
therefore Magistrate Judge Shwartz granted State defendants leave
to move for dismissal of the complaint. They filed that motion on
March 24, 2004.
Meanwhile, plaintiff managed to file numerous motions with this
Court, including (1) a request for relief from two prior orders
denying his applications for appointment of pro bono counsel; (2)
a request for various forms of injunctive relief against prison
staff to return legal documents that had been confiscated and
removed from his cell during a June 11, 2002 search and to enjoin
prison staff from inspecting his incoming legal mail; (3) a
request for relief from an order of this Court issued November 13, 2003 in which Haley's
complaint against the Correctional Medical Services, Inc. and
several other defendants was dismissed; and (4) a request for
emergent injunctive relief seeking to restrain defendants from
tampering with his food.*fn1 The Court denied these four
motions in a written opinion rendered on June 28, 2004. The Court
granted State defendants' motion to dismiss plaintiff's complaint
on August 2, 2004 and terminated the case.
Months later, plaintiff filed the pending motions requesting
relief from both the June 28th order and the August 2nd
As an initial matter, the Court must determine whether to treat
plaintiff's motions as Rule 60(b) motions or as motions for
reargument under L. Civ. R. 7.1(g). Fed.R.Civ.P. 60(b) and L.
Civ. R. 7.1(g) are distinct procedural devices and do not serve
the same purposes. Irrespective of how the movant characterizes
them, "the function of the motion, not the caption, dictates
which Rule applies." Smith v. Evans, 853 F.2d 155, 158 (3d Cir.
A motion for reconsideration under Rule 7.1(g) must be filed
within 10 days of the disputed order, and should only be granted
"to correct manifest errors of law or fact or to present newly
discovered evidence." Harsco Corp. V. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985). A motion for relief under Rule 60(b), on the
other hand, is subject to longer filing periods and is a device
to set aside an order for "mistake, inadvertence, surprise or
excusable neglect." It may not be used as a substitute for
appeal, and legal or factual errors cannot justify granting a
Rule 60(b) motion. Smith, 853 F.2d at 158.
Here, plaintiff argues that relief should be granted because
his failure to file a motion for reconsideration of the June
28th order amounted to excusable neglect under Rule 60(b).
But a close reading of his papers reveals that plaintiff is
actually arguing: (1) that the Court improperly entered the June
28th order because it overlooked documentary evidence
plaintiff submitted along with his motion papers, see Affidavit
I of Clarence Haley, ¶ 5,6; and (2) that he did submit formal
letters addressing his inability to comply with discovery orders
issued by Magistrate Judge Shwartz, see Certification of
Clarence Haley, ¶ 4, 13. Clearly, plaintiff's contentions allege
errors of law and fact, which must be brought under Rule 7.1(g).
Plaintiff cannot avoid the applicable time restrictions by
improperly characterizing his motion as one brought under Rule
Under Rule 7.1(g), plaintiff's requests for relief from the
June 28th order and August 2nd order are time-barred and
insufficient on the merits. Plaintiff did not file either of
these motions within 10 days from the entry of the challenged
Orders. Nor do these pending motions establish any of the grounds
for relief. Plaintiff's submissions fail to (1) point to any
intervening change in controlling law; (2) present evidence that
has become available but was not previously available; or (3)
show it is necessary to correct a clear error of law or to
prevent manifest injustice. North River Ins. Co. V. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Accordingly,
plaintiff's motions are denied.
It should be noted even under Rule 60(b) these motions would be
denied. Plaintiff argues he failed to file a timely motion
because of time constraints imposed by the federal rules; the
confiscation of his legal papers and the opening of his incoming
legal mail by prison staff; the denial of access to the prison law library; and his physically
debilitated state because his food was tampered with. (Haley
Cert., ¶ 21.) Based on all of this, plaintiff argues "excusable
neglect." The Court disagrees.
First, plaintiff admits that he refused to accept the copies of
the June 28th order and the August 2nd order that the
Clerk's Office sent to him. (Haley Cert., ¶ 19.) He attempts to
characterize his refusal as excusable neglect because the mail
was opened and inspected by prison staff. However, this Court
previously had ruled that plaintiff had no right to unopened mail
because of prison safety concerns. Moreover, the record shows
that plaintiff engaged in conduct that belies his claims that he
was denied legal services and suffered physically because of food
tampering: he frequently visited the prison law library; borrowed
legal cases; and made telephone calls related to his case.
(Affidavit of Gail Gillespie, Ex. A, Records Maintained by
Northern State Prison ...