ALD-253                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-3782
                                       ___________

                               SALAHUDDIN F. SMART,
                                             Appellant

                                             v.

       ARAMARK INC; JEFFREY BURRELL, ARAMARK SUPERVISOR;
           CAMDEN COUNTY DEPARTMENT OF CORRECTIONS;
      DAVID OWENS, WARDEN; CAMDEN COUNTY BOARD OF CHOSEN
                           FREEHOLDERS
                ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 1-14-cv-03007)
                       District Judge: Honorable Renee M. Bumb
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 25, 2015

            Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges


                               (Opinion filed: July 2, 2015)
                                       _________

                                        OPINION*
                                        _________



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Appellant, Salahuddin F. Smart, appeals from the District Court’s August 15, 2014

order. For the following reasons, we will summarily affirm the District Court’s order.

                                             I.

       In May 2014, while he was incarcerated at the Camden County Correctional

Facility (CCCF), Smart commenced this civil rights action in the United States District

Court for the District of New Jersey, alleging that his First Amendment rights had been

violated when he was forced to shave his beard in order to work in the prison kitchen.

Smart claimed that the prison’s policy was discriminatory against all Jewish and Muslim

prisoners, and that the prison could have provided “beard nets” in order to meet hygienic

standards without interfering with prisoners’ religious beliefs. Smart named as

defendants: David S. Owens, Jr., the warden of the CCCF; Aramark Inc., the prison’s

food supplier; Jeffrey Burrell, an Aramark supervisor; the Department of Corrections

(DOC); and the Camden County Board of Chosen Freeholders. Smart sought one million

dollars in damages from each of the defendants except defendant Burrell, from whom he

sought $10,000.00.

       The District Court granted Smart’s application to proceed in forma pauperis (IFP)

and reviewed the complaint pursuant to 28 U.S.C. § 1915(e)(2), ultimately concluding

that it failed to state a claim on which relief could be granted. 28 U.S.C.

§ 1915(e)(2)(B)(ii). Specifically, the District Court determined that: (1) the DOC and

Warden Owens (in his official capacity) were not subject to suit under § 1983, see Will v.
                                             2
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); (2) Aramark, defendant Burrell, and

the Freeholders could not be liable under § 1983 based on a theory of respondeat

superior, see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); and (3) Smart

failed to state a violation of his rights under either the First or Fourteenth Amendments.

The District Court further determined that the deficiencies in the complaint were not

amenable to cure by re-pleading.1 In concluding that Smart had failed to state a claim,

the District Court specifically noted that its order dismissing Smart’s complaint would

qualify as a “strike” for the purpose of the “three strikes rule.” See 28 U.S.C. § 1915(g)

(disallowing IFP status to litigants who have filed three actions or appeals dismissed as

frivolous or for failure to state a claim).

       Approximately nine weeks later, Smart filed a motion challenging the District

Court’s order. Smart objected to the District Court’s designation of the complaint as a

“strike” under the “three strikes rule,” and argued that the District Court had erred in

determining that he had failed to state a constitutional claim. Although Smart cited Rule

60(b)(6) in support of his motion, the District Court construed it as an “untimely and

meritless motion for reconsideration that merely bears a Rule 60 designation.” (Op. 3,

ECF No. 6.) The District Court further determined that, in any event, Smart had failed to

demonstrate that he was entitled to Rule 60(b)(6) relief. Accordingly, by order entered


1
  The District Court recognized that Smart sought class certification on behalf of all
Jewish, Muslim, or Christian prisoners who had to shave their beards in order to work in
the kitchen, but denied the request as moot. The District Court did not address whether
Smart had exhausted his administrative remedies pursuant to 42 U.S.C. § 1997e(a).
                                              3
August 15, 2014, the District Court denied Smart’s motion. Smart timely appealed from

the District Court’s order.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.2 Whether

Smart’s post-judgment motion is construed as arising under Rule 59(e) or 60(b), we

review the District Court’s order denying it for abuse of discretion. See Max’s Seafood

Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); Brown v. Phila. Hous. Auth., 350

F.3d 338, 342 (3d Cir. 2003).

       First, to the extent that the District Court construed the motion as seeking

reconsideration under Rule 59(e), the court acted within its discretion in denying it as

untimely.3 Pursuant to Rule 59(e), a motion to alter or amend a judgment must be filed

no later than twenty-eight days after the entry of the District Court’s order. Fed. R. Civ.

P. 59(e). In this case, the District Court entered its order dismissing the complaint on




2
 We lack jurisdiction to review the District Court’s underlying order dismissing the
complaint. The District Court denied the complaint by order entered May 29, 2014.
Smart’s notice of appeal, dated August 23, 2014, was untimely with respect to the May
29, 2014 order, see Fed. R. App. P. 4(a)(1)(A), and Smart’s July 31, 2014 post-judgment
motion did not toll the time for filing a notice of appeal, see Fed. R. App. P.
4(a)(4)(A)(iv) and (vi); Fed. R. Civ. P. 59(e).
3
  Rather than relying on Rule 59(e), the District Court deemed Smart’s motion untimely
under Local Rule 7.1(i), which allows for only a fourteen-day reconsideration period.
See D.N.J. L. Civ. R. 7.1(i). We note, however, that Local Rule 7.1(i) explicitly states
that it does not supersede Rule 59(e). See id. (providing for a fourteen-day
reconsideration period “unless otherwise provided by statute or rule (such as Fed. R. Civ.
                                             4
May 29, 2014. Smart then had twenty-eight days, or until June 26, 2014, to seek

reconsideration. Smart’s motion, dated July 25, 2014, was therefore untimely.

       Furthermore, to the extent that Smart invoked Rule 60(b)(6) in support of his

motion, the District Court acted within its discretion in determining that he was not

entitled to relief under this “catchall” provision. Rule 60(b)(6) “provides for

extraordinary relief and may only be invoked upon a showing of exceptional

circumstances.” Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002)

(internal quotation and citation omitted). We have made clear that a Rule 60(b) motion

“may not be used as a substitute for an appeal, and . . . legal error, without more[,] does

not warrant relief.” United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003) (quotation

and citation omitted). Given that Smart alleged nothing more than legal error in his

motion, he failed to demonstrate that he was entitled to this extraordinary relief.

       Finding no substantial question raised by this appeal, we will summarily affirm the

District Court’s order. 3d Cir. LAR 27.4 and I.O.P. 10.6.




P. 50, 52 and 59)”). Given that Smart’s motion was untimely under both Rules, any error
by the District Court in this regard was harmless.
                                              5
