UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

FELIX ORIAKHI, :

:

Plaintiff, :

:

v. :

:

UNITED STATES OF AMERICA, :

:

Defendants. :

 :

Hon. Jerome B. Simandle

Civil No. 11-1998 (JBS)

OPINION

SIMANDLE, District Judge:

IT APPEARING THAT:

1. Felix Oriakhi, a prisoner incarcerated at FCI Fort Dix

in New Jersey, submitted to the Clerk for filing a pro se

document labeled “MOTION FOR WRIT OF MANDAMUS FOR THE RETURN OF

PROPERTY.” (Docket Entry #1.) The pleading claims jurisdiction

under 28 U.S.C. §§ 1331, 1361. 

2. Mr. Oriakhi did not prepay the $350.00 filing fee or

submit an application to proceed in forma pauperis pursuant to 28

U.S.C. § 1915. 

3. Plaintiff asserted the following facts in the pleading:

Plaintiff alleges that prison officials

confiscated plaintiff’s property items which

included a book, tit[]led “Good Orgasm Guide”

and a Gym Bag. The book order was

confiscated on or about November 2005. And

the Gym bag was confiscated on or about May

16, 2005. [Administrative Remedy was

exhausted pursuant to 1997e(a)]

Further plaintiff’s attempts to have the

seized items from the prison officials

resulted in plaintiff’s loss of an additional

$350.00, plus other expenses. Plaintiff

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alleges that as a result of the prison

officials action, plaintiff has lost a total

expenses of about $500.00, which includes,

cost paid for the book, shipping and

handling, cost for the gym bag, filing fee

cost in an FTCA Claims, cost pain for

stationaries such as typing wheel, ribbon,

correction tape, stamps, copying cost, and

etc.

(Docket Entry #1, p. 3.)

4. For relief, Plaintiff sought a “writ of mandamus

directing prison officials to return the seized property items

and the cost associated with the property or alternatively pay an

equival[]ent cost of the items and the associated cost if the

property cannot be located or found by Defendant.” (Docket Entry

#1, p. 4.)

5. By Order entered September 30, 2011, this Court found

that Mr. Oriakhi’s pleading did not support a claim that the

United States, the Bureau of Prisons, or any federal employee,

owes him a nondiscretionary duty to allow him to retain property

of his choosing, to return confiscated or lost property, or to

reimburse him for the cost of confiscated or lost property. 

Accordingly, this Court ruled that the pleading was not a bona

fide mandamus petition under 28 U.S.C. § 1361, but a civil action

for injunctive relief and/or damages that was subject to the

PLRA, and required payment of a $350.00 filing fee or the

granting of an application for leave to proceed in forma pauperis

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without prepayment of fees pursuant to 28 U.S.C. § 1915(a) and

(b)(1). 

6. In addition, this Court noted in the Order that, while

incarcerated, Plaintiff has had at least three prior civil

actions and/or appeals dismissed by a court of the United States

on the grounds that it was frivolous, malicious, or failed to

state a claim upon which relief may be granted. See, e.g.,

Oriakhi v. Wood, C.A. No. 07-2532 opinion (3d Cir. Oct. 9, 2007);

Oriakhi v. Harding, Civ. No. 98-3465 order (D. Md. Oct. 22,

1998), aff’d, 175 F. 3d 1015 (4th Cir. 1999); Oriakhi v. Butler,

Civ. No. 94-2474 order (D. Md. Sept. 30, 1994). This Court

determined that, because the facts asserted in the pleading did

not show that Plaintiff was in imminent danger of serious

physical injury, 28 U.S.C. § 1915(g) barred his proceeding in

forma pauperis in this matter. See 28 U.S.C. § 1915(g); AbdulAkbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001). 

7. This Court’s Order administratively terminated the

action, but advised Mr. Oriakhi that this Court would enter an

order reopening the case if he prepaid the $350 filing fee within

14 days of the date of the entry of the Order.

8. Mr. Oriakhi did not prepay the $350 filing fee.

9. On October 5, 2011, Mr. Oriakhi filed a “MOTION TO ALTER

OR AMEND JUDGMENT PURSUANT TO RULE 59(e) FED. R. CV. P.” (Dkt

5.) Mr. Oriakhi states:

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The plaintiff wish[es] to withdraw the demand

for equitable relief and other expenses

o[th]er than the return of his illegally

confiscated book and gym bag in violation of

the law.

The plaintiff therefore request[s] this court

to direct the return of his book entitled,

“good orgasm guide,” and “gym bag” only.

Wherefore, the plaintiff prays that the

request to alter or amend judgment be granted

and the writ of mandamus issue for the return

of plaintiff’s book and gym bag only.

(Dkt. 5 at 1-2.)

10. Rule 59(e) of the Federal Rules of Civil Procedure

provides simply that “[a] motion to alter or amend a judgment

must be filed no later than 28 days after the entry of the

judgment. Fed. R. Civ. P. 59(e). A proper Rule 59(e) motion

must rely on one of three grounds: (1) an intervening change in

controlling law; (2) the availability of new evidence; or (3) the

need to correct clear error of law or prevent manifest injustice. 

N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218

(3d Cir.1995). However, mere disagreement with the District

Court’s decision is inappropriate on a Rule 59(e) motion, and

should be raised through the appellate process. See Assisted

Living Associates of Moorestown, L.L.C., v. Moorestown Tp, 996 F.

Supp. 409, 442 (D.N.J. 1998) (citing Bermingham v. Sony Corp. of

America, Inc., 820 F. Supp. 834, 859 n.8 (D.N.J. 1992), aff’d, 37

F.3d 1485 (3d Cir. 1994)). 

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11. In Mr. Oriakhi’s original pleading, he wanted this

Court to order prison officials to return his gym bag and book. 

Although Mr. Oriakhi states in the current motion that he is

withdrawing his “demand for equitable relief,” he again requests

this Court to issue a “writ of mandamus” “direct[ing] the return

of his book . . . and ‘gym bag.’” (Dkt. 5 at 1.) Mr. Oriakhi’s

present motion advances the same argument that was in his

pleading. Because this is not a proper basis for reconsideration

under Rule 59(e), this Court will deny the motion. See Lazaridis

v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010). 

12. An appropriate Order accompanies this Opinion. 

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

U.S. District Judge

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