HARRIS v. HOLMES

Filing 103

OPINION. Signed by Judge Noel L. Hillman on 4/10/2019. (rss, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
GARY HARRIS,
:
:
Plaintiff,
:
Civ. No. 14-460 (NLH)(JS)
:
v.
:
OPINION
:
CHRISTOPHER HOLMES, et al.,
:
:
Defendants.
:
______________________________:
APPEARANCES:
Gary Harris, No. 283029
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff pro se
HILLMAN, District Judge
Plaintiff, Gary Harris, appearing pro se, is in the custody
of the New Jersey Department of Corrections (“NJDOC”) and
currently incarcerated at South Woods State Prison (“SWSP”) in
Bridgeton, New Jersey.

Plaintiff claims that Defendants have

violated his rights under the First and Fourteenth Amendments of
the U.S. Constitution by not providing him with hot meals and
adequate food during Ramadan, failing to accommodate sufficient
prayer time and provide prayer oil, preventing him from wearing
religious attire, and harassing him during 2012 and 2013.
Presently before the Court is Plaintiff’s request to
reinstate Defendants Farsi, Lanoza, Bolden, and Easely, who were
previously dismissed for lack of service and Plaintiff’s
1

response to why Defendants Marcucci, Moyer, Ramano, Selby, and
Yusef should not be dismissed for failure to prosecute.
Nos. 101, 102.

See ECF

For the reasons that follow, the Court’s prior

order dismissing Defendants Farsi, Lanoza, Bolden, and Easely
will stand and the Court will dismiss Defendants Marcucci,
Moyer, Ramano, Selby, and Yusef for failure to prosecute.
I.

Factual Background
Plaintiff Gary Harris commenced this action by filing a

Complaint in which he asserts claims pursuant to 42 U.S.C. §
1983 for (1) violation of the First Amendment’s Free Exercise
Clause; and (2) denial of Equal Protection in violation of the
Fourteenth Amendment against Defendants Hicks, Holmes, Lanigan,
Norris and Silva as well as Defendants Mark Farsi, Greg Lanoza,
Mack Selby, Mark Romano, John Marcucci, Dr. Yusef, Reverend
Moyer, Kevin Bolden, Easely, and John Does 1-10.
3-17, 33-36.

ECF No. 1, ¶¶

On March 31, 2015, the Court screened the

Complaint as required by 28 U.S.C. § 1915(e)(2)(B) and
determined that the claims should proceed.

ECF No. 6.

The

Court then ordered the Clerk of Court to file the Complaint and
issue the summonses.

ECF No. 6.

Plaintiff filled out the

United States Marshal (“USM”) 285 forms and returned them for
service on April 22, 2015.

See ECF No. 8.

Defendants Holmes, Hicks, Lanigan, Norris, and Silva were
served on August 24, 2015 (the “Appearing Defendants”).
2

See ECF

No. 10.

Those defendants appeared in the litigation and were

represented by attorneys from the Office of the Attorney General
of New Jersey.

See, e.g., ECF Nos. 12, 20, 20-1.

After years

of litigation, including motions practice, discovery, and
settlement attempts, the Appearing Defendants moved for summary
judgment, which was entered in their favor on all claims by
opinion and order dated January 23, 2019.

See ECF Nos. 99, 100.

Defendants Marcucci, Moyer, Ramano, Selby, and Yusef (the
“Served Defendants”) were all served by the U.S. Marshals
Service on September 28, 2015 at 11:00 a.m., with Linda Linen
receiving the summonses on their behalf.

See ECF No. 19.

A

review of the docket shows that these defendants have never
appeared or participated in the action.

The Served Defendants

are not and were not represented by the Office of the Attorney
General of New Jersey. 1

See ECF No. 20-1.

1

Plaintiff has never

In Defendants Holmes, Hicks, Lanigan, Norris, and Silva’s
Motion to Extend Time to Answer, ECF No. 20, the Office of the
Attorney General of New Jersey confirmed that it represents
those Appearing Defendants. See ECF No. 20-1. In it, counsel
also notes that “service of process was effectuated via United
States Marshal Service upon defendants John Marcucci, Moyer,
Mark Ramano, Mack Selby, and Yusef. The summonses were returned
executed and entered on the docket on September 29, 2015. While
all these individuals appear to be employed by, or affiliated to
some degree with, the New Jersey Department of Corrections, they
have not submitted representation requests to this office.” Id.
at 4 (internal docket references omitted). Plaintiff received a
copy of this motion in which the Office of the Attorney General
states that it does not represent Defendants Marcucci, Moyer,
Ramano, Selby, and Yusef. See ECF No. 20-4 (certificate of
service).
3

moved for entry of default against the Served Defendants even
though their answers were due in October 2015.

Because of this

failure to prosecute, the Court provided Plaintiff with notice
of its intent to dismiss Defendants Selby, Romano, Marcucci,
Yusef, and Moyer under Rule 41.

See ECF Nos. 99, 100.

The U.S. Marshals Service was unable to effect service on
Defendants Farsi, Lanoza, Bolden, and Easely (the “Unserved
Defendants”) with the information provided by Plaintiff.
ECF Nos. 11, 18.

See

For these defendants, Plaintiff provided as

service addresses the addresses of South Woods State Prison in
Bridgeton, New Jersey, and the New Jersey Department of
Corrections in Trenton, New Jersey.

See id.

As to Defendant

Farsi, the summons was returned unexecuted with a note on the
USM 285 form that the defendant is “no longer employed at DOC.”
ECF No. 11 at 1.

As to Defendant Lanoza, the summons was

returned unexecuted with a note on the USM 285 form that the
defendant is “retired per DOC.”

Id. at 4.

As to Defendant

Bolden, the summons was returned unexecuted with a note on the
USM 285 form that the defendant is “retired per DOC.”

Id. at 7.

As to Defendant Easely, the summons was returned unexecuted with
a note on the USM 285 form that the defendant “no longer works
at SWSP.”

ECF No. 18 at 1.

After these summonses were returned

unexecuted, a review of the docket shows that Plaintiff has
never attempted to effectuate service on them, updated the USM
4

285 forms with correct addresses, or requested the Court’s
assistance in ensuring that they are served or ascertaining
their addresses for service.

In the opinion and order granting

summary judgment in favor of the appearing defendants, the Court
dismissed without prejudice Defendants Farsi, Lanoza, Bolden,
and Easely because Plaintiff had failed to serve them as
required.
II.

See ECF Nos. 99, 100.

Discussion
A.

Failure to Prosecute Served Defendants

Defendants Selby, Romano, Marcucci, Yusef, and Moyer were
served, see ECF No. 19 (summons returned executed), however they
have never appeared or participated in this litigation.

Despite

being served in or around September 2015 with answers due in or
around October 2015, Plaintiff has never moved for a default
against them.

In response to the Court’s notice of its intent

to dismiss these defendants for failure to prosecute, Plaintiff
states that he believed that the Served Defendants were
represented by the New Jersey Attorney General’s Office like the
Appearing Defendants.

See ECF No. 101 at 3-4.

A plaintiff fails to prosecute his case when he does not
seek a default against a non-responsive defendant.

See Park v.

Ingersoll-Rand Co., 380 F. App’x 190 (3d Cir. 2010) (affirming
district court’s sua sponte dismissal for failure to prosecute
when plaintiff did not seek default against non-responsive
5

defendants).

When a plaintiff fails to prosecute his or her

case, the court may sua sponte dismiss the action pursuant to
Federal Rule of Civil Procedure 41(b).

See Link v. Wabash

Railroad Co., 370 U.S. 626, 629 (1962); Donnelly v. JohnsManville Sales Corp., 677 F.2d 339, 341 (3d Cir. 1982) (“The
rule does not explicitly provide for sua sponte dismissals by
the court, but we believed that it is broad enough to authorize
such dismissals on the same basis as it authorizes dismissals
upon motion of the defendant.”).

The Supreme Court of the

United States explained in Link that,
The authority of a federal trial court to dismiss a
plaintiff’s action with prejudice because of his
failure to prosecute cannot seriously be doubted. The
power to invoke this sanction is necessary in order to
prevent undue delays in disposition of pending cases
and to avoid congestion in the calendars of the
District Courts. The power is of ancient origin,
having its roots in judgments of nonsuit and non
prosequitur entered at common law . . . . It has been
expressly recognized in Federal Rule of Civil
Procedure 41(b) . . . .
Link, 370 U.S. at 629-30.

Prior to a dismissal with prejudice,

however, the court must balance the factors identified in Poulis
v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.
1984), which include the extent of the party’s personal
responsibility, the prejudice to the adversary caused by the
plaintiff’s failure to prosecute, a history of dilatoriness,
whether the conduct off the party was willful or in bad faith,

6

the effectiveness of sanctions other than dismissal, and the
meritoriousness of the claim.

Id. at 868.

An evaluation of the Poulis factors weighs in favor of
dismissal.

Here, Plaintiff is personally responsible for

failing to move for default against the Served Defendants.
Although he states that he believed that the Served Defendants
were represented by the New Jersey Attorney General’s Office,
the record reflects that the Attorney General’s Office
explicitly stated that it was not representing the Served
Defendants, see ECF No. 20-1 at 4, and Plaintiff received this
notification according to the certificate of service for it, see
ECF No. 20-4.

At no point thereafter did the Attorney General’s

Office file a notice of appearance on behalf of any of the
Served Defendants nor did they ever appear in the litigation.
It was then Plaintiff’s responsibility to move for a default
against the Served Defendants.
As to dilatoriness on the part of Plaintiff, the Court
finds that Plaintiff has generally not been dilatory except for
the failure to prosecute these Served Defendants and to ensure
service of the Unserved Defendants.

This factor is neutral.

Also neutral is whether Plaintiff’s conduct was willful or in
bad faith, as there are no indications of either.
The prejudice to the Served Parties and the meritoriousness
of the claims both weigh in favor of dismissal.
7

This case has

already progressed to judgment in favor of the Appearing
Defendants.

See ECF Nos. 99, 100.

The Served Defendants have

had no opportunity to participate in this litigation including
either motions practice or discovery, and the deadlines for the
conclusion of discovery and dispositive motions have already
passed.

See, e.g., ECF No. 86 (scheduling order).

The Court

also notes that it found no merit to Plaintiff’s claims as
asserted against the Appearing Defendants, see ECF Nos. 99, 100,
and Plaintiff has not demonstrated how those same claims
asserted against the Served Defendants would now have merit.
Finally, the Court finds that any alternative sanction would not
be effective given the stage of the litigation -– post-judgment
–- and Plaintiff’s in forma pauperis status.

Therefore,

pursuant to Federal Rule of Civil Procedure 41, the Court will
dismiss with prejudice the Served Defendants.
B.

Dismissal of Unserved Defendants

As the Court noted in its prior opinion, Plaintiff has
failed to effect service on Defendants Farsi, Lanoza, Bolden,
and Easley.
99 (opinion).

See ECF Nos. 11 (unexecuted summonses), 18 (same),
A plaintiff in a civil action in federal court

must complete service of his complaint within 120 days of filing
or within a period prescribed by the District Court.

See Fed.

R. Civ. P. 4(m); Mathies v. Silver, 450 F. App’x 219, 221 (3d
Cir. 2011) (affirming district court’s dismissal of action in
8

which plaintiff failed to effect service).

If the plaintiff

fails to complete service within the specified time, Rule 4(m)
requires the Court to determine whether the plaintiff has shown
good cause for the failure.

See Mathies, 450 F. App’x at 221;

Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997).
The Court found in its prior opinion that Plaintiff had not
demonstrated good cause for the failure to serve these
defendants because Plaintiff knew that these defendants were not
served, see ECF Nos. 11, 18, failed to ask the Court for an
extension of time in which to serve the defendants, and has
failed to prosecute the claims alleged against these defendants.
The Court dismissed the Unserved Defendants without prejudice
and, in light of Plaintiff’s pro se status, permitted Plaintiff
an opportunity to present any good cause arguments for why these
defendants have not been served.
Plaintiff has now filed a response and seeks to have
Defendants Farsi, Lanoza, Bolden, and Easely reinstated.
ECF No. 102.

See

In support of his request, Plaintiff states that

he listed secondary addresses for service for the defendants, he
was not aware of his responsibility to request help from the
Court in locating Defendants, and he believed that these
defendants were on notice of the claims against them.
102 at 5-6.

9

ECF No.

The Court finds that Plaintiff has not demonstrated good
cause sufficient for the Court to set aside its prior dismissal
of the Unserved Defendants.

When a plaintiff is proceeding in

forma pauperis, the “officers of the court shall issue and serve
all process.”

28 U.S.C. 1915(b).

See Fed. R. Civ. P. 4(c)(3).

Although a plaintiff proceeding in forma pauperis may rely on
service by the United States Marshal, “he is not divested of all
responsibilities related to this task.”

Lopez-Perez v. DeRose,

No. 11-cv-48, 2012 WL 750963, at *5 (M.D. Pa. March 7, 2012).
“When advised of a problem in accomplishing service, a pro se
litigant proceeding in forma pauperis must ‘attempt to remedy
any apparent service defects of which [he] has knowledge.’” Id.
(quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).
Dismissal under Federal Rule of Civil Procedure 4(m) may be
appropriate when the failure to serve is due to plaintiff’s
neglect or fault, such as failing to provide sufficient
information to identify or locate the defendant and the
plaintiff fails to remedy the situation after being put on
notice.

Id.

Plaintiff’s assertions in his response are belied by the
record.

Here, it is plain from the docket that Plaintiff knew

that these defendants were not served because the summonses were
returned unexecuted, ECF Nos. 11, 18, and these defendants have
never appeared or participated in the litigation.
10

Plaintiff has

never sought assistance from the Court to ensure that these
defendants were served nor has he sought to prosecute his case
against them.

It is immaterial whether Plaintiff thinks that

the Unserved Defendants were on notice of his claims because he
has made no effort to prosecute the case against them, and, in
the alternative, the Court would dismiss these defendants for
failure to prosecute for the reasons outlined supra as to the
Served Defendants.

Although it is the United States Marshal

that serves the summonses, it is still Plaintiff’s duty to
attempt to remedy any problems with service and to prosecute his
case.

The Court’s order dismissing the Unserved Defendants, ECF

No. 100, stands.
III. Conclusion
The Court’s order dismissing the action against Defendants
Farsi, Lanoza, Bolden, and Easley stands as Plaintiff has failed
to demonstrate good cause for his failure to serve or otherwise
prosecute the case against them.

The Court will dismiss with

prejudice Defendants Selby, Ramano, Marcucci, Yusef, and Moyer
for failure to prosecute.

An appropriate order follows.

Dated: April 10, 2019
At Camden, New Jersey

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

11