COOPER v. ATLANTIC COUNTY JUSTICE FACILITY et al
Filing
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OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 1/12/16. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MORRIS COOPER,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-575 (JBS-JS)
v.
ATLANTIC COUNTY JUSTICE
FACILITY, et al.,
OPINION
Defendants.
APPEARANCES:
JEFFREY S. MCLAIN, Esq.
Holtzman & McClain, P.C.
524 Maple Avenue, Suite 200
Linwood, New Jersey 08221
Attorney for Defendant CFG Health Systems, LLC
JAMES T. DUGAN, Esq.
Atlantic County Department of Law
1333 Atlantic Avenue, 8th Floor
Atlantic City, New Jersey 08401
Attorney for Defendants Officer A. Buonsante, Sgt. Gill,
Sgt. Montoya, D.T.J. Geiger, and Ofc. Grey.
SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on Defendant CFG Health
Systems, LLC’s (“CFG”) motion to dismiss the complaint pursuant
to Local Civil Rule 10.1(a) and Federal Rule of Civil Procedure
41(b), (Docket Entry 20), and Defendants’ Buonsante, Geiger,
Gill, Grey, and Montoya (“ACJF Defendants”) motion to dismiss
for lack of prosecution, (Docket Entry 22). Pro se Plaintiff
Morris Cooper (“Plaintiff”) did not submit any papers in
opposition. These motions are being considered on the papers
pursuant to Federal Rule of Civil Procedure 78. For the reasons
set forth below, the motions shall be granted, and the complaint
shall be dismissed for lack of prosecution.
BACKGROUND
Plaintiff was a pretrial detainee confined at the Atlantic
County Justice Facility (“ACJF”). He brought this civil rights
action against Defendants ACJF, Freeholders of Atlantic County,
Medical Staff of Atlantic County Justice Facility, Atlantic
County Correctional Officers, CFG Health Systems, LLC, (“CFG”)
and Warden Geraldine Cohen. By Order dated March 17, 2015, this
Court granted Plaintiff's application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a) and ordered the Clerk
to file the complaint. (Docket Entry 2).
This Court thereafter screened the complaint for summary
dismissal pursuant to 28 U.S.C. § 1915. By Opinion and Order
dated April 20, 2015, this Court permitted the complaint to
proceed in part and ordered the Clerk’s Office to issue
summonses. (Docket Entries 4 and 5). On May 6, 2015, Plaintiff
moved for the appointment of pro bono counsel. (Docket Entry 9).
Magistrate Judge Joel Schneider denied the motion without
prejudice on May 27, 2015. (Docket Entry 10).
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The ACJF Defendants filed an answer and crossclaim on July
29, 2015. (Docket Entry 13). The Court sent a pre-trial letter
to the parties on July 29, 2015, (Docket Entry 14), and
Magistrate Schneider issued a scheduling order on July 30, 2015,
(Docket Entry 15). Both of these items were mailed to Plaintiff
at the ACJF; however, they were returned to the Clerk’s Office
as undeliverable. (Docket Entries 16 and 17). Notations on the
envelopes indicated Plaintiff was no longer housed at ACJF.
(Docket Entries 16 and 17). CFG filed its answer on August 21,
2015. (Docket Entry 18).
On September 25, 2015, CFG filed a motion to dismiss
pursuant to Local Civil Rule 10.1(a), or for lack of prosecution
under Federal Rule of Civil Procedure 41. (Docket Entry 20). The
ACJF Defendants filed a motion to dismiss for lack of
prosecution on September 28, 2015. (Docket Entry 22). Plaintiff
has not submitted any opposition to the motions, and mail
addressed to Plaintiff at ACJF continues to be returned as
undeliverable, (Docket Entry 23). CFG filed two certifications
in support of its motion. (Docket Entries 24 and 26).
STANDARD OF REVIEW
A defendant may move to dismiss an action or any claim
against it “if the plaintiff fails to prosecute or to comply
with [the Federal Rules of Civil Procedure] rules or a court
order.” Fed. R. Civ. Pro. 41(b). The Third Circuit has noted
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that “dismissal is a drastic sanction and should be reserved for
those cases where there is a clear record of delay or
contumacious conduct by the plaintiff.” Poulis v. State Farm
Fire & Cas. Co., 747 F.2d 863, 866 (3d Cir. 1984). However,
dismissal is appropriate if a party fails to prosecute the
action. Harris v. City of Phila., 47 F.3d 1311, 1330 (3d Cir.
1995). Failure to prosecute does not require a party to
affirmatively delay the case. Failing to comply with court
orders, failing to respond to discovery, or otherwise failing to
act may constitute lack of prosecution. Adams v. Trustees of the
N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 875 (3d
Cir. 1994).
Courts generally consider the factors outlined in Poulis in
determining whether dismissal is warranted. These six factors
are: (1) the extent of the party's personal responsibility; (2)
prejudice to the adversary; (3) a history of dilatoriness; (4)
whether the conduct was willful or in bad faith; (5)
availability of alternative sanctions; and, (6) the
meritoriousness of the claim. Poulis, 747 F.2d at 868. “Not all
of these factors need be met for a district court to find
dismissal is warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d
Cir. 1988).
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IV. ANALYSIS
It is the responsibility of every unrepresented party,
whether incarcerated or not, to keep this Court and the other
parties apprised of his or her current mailing address. Local
Civ. R. 10.1(a). Plaintiff alone bears this responsibility. See
Briscoe v. Klaus, 538 F.3d 252, 258–59 (3d Cir. 2008) (“It is
logical to hold a pro se plaintiff personally responsible for
delays in his case because a pro se plaintiff is solely
responsible for the progress of his case, whereas a plaintiff
represented by counsel relies, at least in part, on his or her
attorney.”). The first factor therefore weighs in favor of
dismissal.
“[P]rejudice is not limited to ‘irremediable’ or
‘irreparable’ harm. It also includes ‘the burden imposed by
impeding a party's ability to prepare effectively a full and
complete trial strategy.’” Id. at 259 (quoting Ware v. Rodale
Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). CFG argues it
has not been able to prepare its defense to this matter as
Plaintiff has not responded to its discovery requests, executed
medical records authorization, or served expert reports and
disclosures within the timeframes set forth by Magistrate
Schneider in his scheduling order. (Docket Entry 26; Docket
Entry 15). The ACJF Defendants also asserted they would be
unable to comply with discovery deadlines as Plaintiff could not
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be reached. (Docket Entry 22-1 ¶¶ 18-19). Indeed the dates for
the exchange of expert reports, fact discovery, and dispositive
motions set forth in the scheduling order of July 30, 2015 have
passed with no response from Plaintiff to any of Defendants’
inquiries. (Docket Entry 22-1 ¶¶ 16-17; Docket Entry 20-1 ¶¶ 1517). The second factor also weighs in favor of dismissal.
“Extensive or repeated delay or delinquency constitutes a
history of dilatoriness, such as consistent non-response to
interrogatories, or consistent tardiness in complying with court
orders.” Adams v. Trustees of N.J. Brewery Employees' Pension
Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). Although
Plaintiff’s initial failure to update his address was his first
“dilatory” action, he has not contacted the Court since the
filing of his motion for the appointment of counsel in May 2015.
(Docket Entry 9). He has therefore continued to act in a
dilatory manner by ignoring his responsibilities for over six
months. In that time, Plaintiff has not responded to Defendants’
discovery requests or to the Court’s scheduling order and pretrial letter. (Docket Entries 16 and 17). The continued failure
to participate in these proceedings has resulted in the missing
of court-ordered deadlines. Accordingly, the third factor weighs
in favor of dismissal.
In spite of Plaintiff’s continuing failure to communicate
with Defendants and this Court, there are insufficient facts to
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warrant an inference of bad faith or willfulness. “Willfulness
involves intentional or self-serving behavior.” Id. at 875.
Conduct that is “merely negligent or inadvertent” is not
“contumacious,” Briscoe v. Klaus, 538 F.3d 252, 262 (3d Cir.
2008), and the “absence of a good faith effort to prosecute . .
. does not necessarily amount to willfulness or bad faith as
[the Third Circuit] has defined it.” Adams, 29 F.3d at 876. Even
“inexcusabl[y] negligent behavior” does not meet the Poulis
standard of willfulness. Ibid. Defendants have not submitted
anything to this Court that would warrant an inference that
Plaintiff was acting in bad faith either when he initially
failed to update his address or when he continued to do so. As
the record is insufficient to support an inference of bad faith,
the fourth factor does not weigh in favor of dismissal.
The fifth Poulis factor requires the Court to consider the
effectiveness of sanctions short of dismissal. Plaintiff is
proceeding pro se and in forma pauperis, (Docket Entry 2),
therefore monetary sanctions would not be an effective
alternative. See Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d
Cir. 2002). The Court’s scheduling order and Defendants’
discovery requests and motions have been returned as
undeliverable, and there is no new address available to the
Court at which Plaintiff could be contacted. It therefore does
not appear that further orders imposing less severe sanctions,
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such as administrative termination subject to reopening if
Plaintiff provides a valid address or an order to show cause why
the case should not be dismissed, would reach Plaintiff and
garner a response. Issuing an order to show cause or
administratively terminating the complaint would only serve to
delay the proceedings further as Plaintiff likely would not
receive those orders. The Court finds that no sanction short of
dismissal would be effective.
“Generally, in determining whether a plaintiff's claim is
meritorious, we use the standard for a Rule 12(b)(6) motion to
dismiss for failure to state a claim.” Briscoe, 538 F.3d at 263.
The Court determined in its § 1915 screening that several of
Plaintiff’s claims sufficiently stated a claim for relief when
viewing the facts in the light most favorable to Plaintiff. “A
fortiori, these claims surpassed the Rule 12(b)(6) motion to
dismiss standard, and under the Poulis analysis, his claims are
deemed to have merit.” Ibid. The sixth factor does not weigh in
favor of dismissal.
On balance, the Poulis factors weigh in favor of dismissal
for lack of prosecution. The Court finds particularly meaningful
the prejudice Defendants have incurred by the obstruction of
their ability to prepare their defense and the fact that
Plaintiff has not contacted the Court for over six months. Given
Plaintiff’s failure to participate in these proceedings, and the
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inability of the Court to ascertain his current whereabouts,
there does not appear to be any way to continue this litigation.
Defendants’ motions to dismiss for lack of prosecution shall be
granted.
CONCLUSION
For the reasons stated above, the complaint shall be
dismissed for lack of prosecution. An accompanying Order will be
entered.
January 12, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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