ROBERTS v. BALICKI et al
Filing
116
MEMORANDUM OPINION. Signed by Judge Renee Marie Bumb on 2/28/2014. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
ALBERT H. ROBERTS,
:
: Civil Action No. 11-1793 (RMB)
Plaintiff,
:
:
v.
:
MEMORANDUM OPINION
:
KAREN BALICKI, et al.,
:
:
Defendants.
:
_______________________________________
:
BUMB, District Judge:
This matter is before the Court upon the Court’s sua sponte
review of the docket in this matter.
The docket suggests that
Plaintiff: (a) has abandoned this action; and (b) verifies that
Plaintiff willfully elected not to respond to this Court’s order
to show cause.
See Docket Entry No. 113.
This matter was commenced almost three years ago when, on
March 17, 2011, Plaintiff executed a civil complaint
(“Complaint”) challenging the events that had taken place on
April 23, 2009, that is, almost five years ago.
No. 1.
See Docket Entry
The Complaint raised many claims against various
Defendants.
See Docket Entry No. 4 (reviewing each Plaintiff’s
claim in detail).
Some of these claims were facially deficient
and warranted sua sponte dismissal; others were set forth in such
terms that this Court, out of an abundance of caution, found it
appropriate to direct service.
These other claims raised: (a)
Eighth Amendment denial-of-medical-care challenges against
Defendants Richards and Jilla; (b) Eighth Amendment excessive
force challenges against Defendants Richards, Jilla, Yacovelli,
Hogan, Horan, McCoy, Lago, Gandy and Volov; and (c) Eighth
Amendment challenges asserting verbal harassment by Defendants
King, Sheldon and Kenlowe.
See Docket Entry No. 4; see also
Docket Entry No. 113 at 1.
The Court, therefore, directed the
U.S. Marshal to serve summonses upon the aforesaid Defendants.
See Docket Entry No. 5.
The summonses returned executed as to Defendants Gandy,
Horan, Lago, McCoy, Rogan, Yacovelli and Volov (collectively,
“Served Defendants”).
See Docket Entry No. 113 at 1-2.
After a
year and a half of litigation, the Served Defendants moved for
summary judgment.
That motion was granted, and Plaintiff’s
claims against the Served Defendants were dismissed as not
exhausted administratively.
See Docket Entries Nos. 111 and 112.
A different fate, however, awaited Plaintiff’s claims
against Defendants King, Sheldon, Jilla, Richards and Kenlowe
(collectively, “No-Jurisdiction Defendants”).
The summonses
issued as to Defendants King, Sheldon, Jilla and Richards were
returned unexecuted, while the summons issued as to Defendant
Kenlowe produced no record of service.
at 2 (detailing the same).
See Docket Entry No. 113
This Court, therefore, directed re-
service upon Defendant Kenlowe; that re-service verified this
2
Defendant could not have been served on the basis of the
information provided by Plaintiff.
The Court also directed Plaintiff to show cause as to why
his claims against the No-Jurisdiction Defendants should not have
been dismissed for failure to prosecute.
113 to 115.
See Docket Entries Nos.
More than six months passed since the Court’s
issuance of that order to show cause; however, no response was
received from Plaintiff.
See generally, Docket.
Under Rule 41(b) of the Federal Rules of Civil Procedure,
“[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it.”
Fed. R. Civ. P. 41(b).
Also,
district courts have the inherent power to dismiss, sua sponte,
an action that evinces a litigant’s failure to prosecute.
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).1
See
The Court of
Appeals has identified six factors a district court should
consider when contemplating a dismissal for failure to prosecute:
1
Because of the severity of a dismissal sanction, district
courts are obligated to provide the litigant with an opportunity
to explain his reasons for failing to prosecute the action or
comply with court orders prior to dismissing his case sua sponte.
See Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008); but see
Reshard v. Lankenau Hosp., 256 F. App’x 506, 507 (3d Cir. 2007)
(when circumstances make such action appropriate, “‘a District
Court may dismiss a complaint for failure to prosecute even
without affording notice of its intention to do so or providing
an adversary hearing before acting’”) (quoting Link v. Wabash
R.R. Co., 370 U.S. 626, 633 (1962)).
3
(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.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.
1984) (emphasis removed).2
Here, the balance of Poulis factors compels this Court to
dismiss Plaintiff’s claims against the No-Jurisdiction Defendants
since: (a) Plaintiff is personally responsible for identifying
the No-Jurisdiction Defendants in a fashion sufficient for the
U.S. Marshal to execute service; (b) since January 2012, i.e.,
for two years, Plaintiff had notice that service could not have
been executed on the No-Jurisdiction Defendants, and he was
explained the shortcomings he had to cure; (c) Plaintiff did not
cure these shortcomings; (d) Plaintiff did not respond to this
Court’s order to show cause for six months; (e) this Court cannot
proceed with litigation of this matter since the Court lacks in
personam jurisdiction over the No-Jurisdiction Defendants; and
(f) any future litigation against the No-Jurisdiction Defendants
2
No single factor is dispositive, and “[e]ach factor need
not be satisfied for the [district] court to dismiss a claim.”
Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003).
However, the factors “should be weighed by the district courts in
order to assure that the ‘extreme’ sanction of dismissal . . . is
reserved for the instances in which it is justly merited.”
Poulis, 747 F.2d at 870.
4
would be highly prejudicial because five years have passed since
the events Plaintiff asserted, but the No-Jurisdiction Defendants
never had a notice that they might be hailed to the court to
litigate these events, their recollections might have faded, and
the evidence upon which the No-Jurisdiction Defendants might have
relied could be destroyed by the prison in an ordinary course of
business, without any notice to the No-Jurisdiction Defendants.
Moreover, the meritoriousness of Plaintiff’s claims against
the No-Jurisdiction Defendants is doubtful at best.
Plaintiff’s
harassment claims against King, Sheldon and Kenlowe appear, at a
closer review, facially meritless, since Plaintiff limited his
allegations to purely verbal harassment (such as threats or
laughter) not cognizable in a § 1983 review without a showing of
physical violence.
See Stepney v. Gilliard, 2005 U.S. Dist.
LEXIS 31889, at *19 (D.N.J. Dec. 8, 2005) (“Verbal harassment or
profanity alone . . . no matter how inappropriate,
unprofessional, or reprehensible it might seem, does not
constitute the violation of any federally protected right and
therefore is not actionable under [Section] 1983”) (quoting
Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N. Y. 1998)); see
also Robinson v. Taylor, 204 F. App’x 155, 156 (3d Cir. 2006)
(“It is well settled that verbal harassment of a prisoner,
although deplorable, does not violate the Eighth Amendment”).
5
In addition, Plaintiff’s excessive force claims against
Defendants Richards and Jilla are likely to be subject to
dismissal on the failure to exhaust grounds (that served as the
basis for this Court’s grant of summary judgment to the Served
Defendants).
This is so because Plaintiff’s excessive force
claims against Defendants Richards and Jilla were based on the
events he alleged with regard to the Served Defendants, and the
likelihood that Plaintiff properly exhausted his claims against
Defendants Richards and Jilla (while not exhausting his claims
against the Served Defendants) appears slim.
Therefore, under
Poulis, the Court finds itself constrained to dismiss Plaintiff’s
claims against the No-Jurisdiction Defendants.3
An appropriate Order accompanies this Memorandum Opinion.4
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
3
The Court notes the presence of Plaintiff’s Eighth
Amendment denial-of-medical-care claims against Defendants
Richards and Jilla. This line of claim is the sole reason for
the Court’s concern in this matter. However, this sole concern
cannot affect the outcome of the Court’s Poulis analysis in light
of other Poulis considerations applicable here.
4
The Court, mindful of the severity of the sanction
imposed here, will retain temporary jurisdiction over this matter
for thirty days solely out of an abundance of caution: in order
to ensure that Plaintiff has one final opportunity to respond to
the Court’s order to show cause (docketed in this matter as
Docket Entry No. 113) and to explain the reasons for Plaintiff’s
more-than-half-a-year procrastination with filing such response.
6
Dated:
7
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