HAROLD v. MCCRAY

Filing 9

OPINION. Signed by Judge Renee Marie Bumb on 7/6/2017. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DANNY HAROLD,

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Plaintiff,
v.
KEITH McCRAY,
Defendant.

CIV. NO. 16-5453 (RMB)

OPINION

BUMB, United States District Judge
I.

BACKGROUND
Plaintiff, a former inmate at Talbot Hall in Kearney, New

Jersey, brought this civil rights action pursuant to 42 U.S.C. § 1983.
(Compl., ECF No. 1.) On September 21, 2016, the Court granted
Plaintiff’s application to proceed in forma pauperis and directed
the Clerk to send Plaintiff a transmittal letter explaining the
procedure for completing the USM-285 forms required for service of
the complaint on the defendant.

(Order, ECF No. 2.) The summons was

returned as executed on November 21, 2016.

(Process Receipt and

Return, ECF No. 6.)
A copy of the Process Receipt and Return was mailed to Plaintiff
at his last known address.

On December 5, 2016, it was returned to

the Court as “Attempted Not Known” “Unable to Forward”. (ECF No. 7.)

On December 13, 2016, Defendant filed a motion to dismiss the
complaint (Mot. to Dismiss Pl’s Compl. Pursuant to Fed. R. Civ. P.
12(b)(5) (“Mot. to Dismiss”), ECF No. 8) asserting that no one by
the name of Keith McCray is employed at Talbot Hall.

(Brief in Supp.

of Mot. to Dismiss Compl. Pursuant to Fed. R. Civ. P. 12(b)(5))
(“Def’s Brief”), ECF No. 8-2 at 4.)

Defendant requested that the

Court dismiss the complaint for insufficient service of process.
(Id. at 6-7.)

Plaintiff did not respond to the motion to dismiss,

nor has he contacted the Court to provide his new address.
II. DISCUSSION
Local Civil Rule 10.1(a) provides, in relevant part:
unrepresented parties must advise the Court of
any change in their . . . address within seven
days of being apprised of such change by filing
a notice of said change with the Clerk. Failure
to file a notice of change may result in the
imposition of sanctions by the Court.
Dismissing a Plaintiff’s complaint without prejudice is an
appropriate remedy for noncompliance with this rule.

See Archie v.

Dept. of Corr., Civ. No. 12-2466 (RBK/JS), 2015 WL 333299, at *1
(D.N.J. Jan. 23, 2015) (collecting cases).
Mail sent to Plaintiff’s last known address was returned to the
Court.

To date, Plaintiff has not informed the Court of his new

address. When dismissing an action as a sanction, a court should weigh
the following factors:
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(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 and Cas. Co., 747 F.2d 863, 868 (3rd Cir.
1984).
A.

Extent of the Party’s Personal Responsibility

Plaintiff, as an unrepresented litigant, is solely responsible
for providing the Court with his correct address.
B.

Prejudice to the Adversary

According to Defendant’s motion to dismiss, Plaintiff has not
served the complaint on Defendant Harold McCray because there is no
Harold McCray at Talbot Hall.

(Def’s Brief, ECF No. 8-2.)

The

summons and complaint were given to Melissa Crayten at Talbot Hall
on October 28, 2016.

(ECF No. 6.) Ms. Crayten searched the

employment records of Talbot Hall and could not find a Harold McCray.
(ECXF No. 8-2 at 4, ¶5.) Pursuant to Federal Rule of Civil Procedure
4(m), if the defendant is not served within 90 days after the
complaint is filed, the court must dismiss the action without
prejudice as to that defendant.

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C.

History of Dilatoriness

Plaintiff has taken only two steps in prosecuting this action:
filing the complaint and completing a form to obtain service on the
defendant at Talbot Hall. Plaintiff did not respond to Defendant’s
motion to dismiss.
D.

Whether the Conduct of the Party Was Willful or in Bad Faith

It is not presently known whether Plaintiff’s failure to
prosecute this action was willful or in bad faith.
E.

Effectiveness of Alternative Sanctions

Sanctions other than dismissal will not be effective because
the Court cannot communicate any sanctions to Plaintiff without his
current mailing address.
F.

The Merits of the Claims or Defenses

The final factor to consider is whether the Plaintiff’s claims
have merit. The complaint was allowed to proceed past screening under
28 U.S.C. § 1915(e)(2)(B). (Order, ECF No. 2.) Nonetheless, the case
cannot proceed until Plaintiff provides the information needed to
serve the complaint on the defendant.
Weighing all of the factors, dismissal as a sanction is
warranted in this case, primarily because the case cannot move
forward without a way to communicate with Plaintiff. The Court will

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dismiss the complaint without prejudice.

An appropriate order

follows.
III. CONCLUSION
In the accompanying Order filed herewith, this Court will
dismiss this action without prejudice because Plaintiff failed to
notify the Court of his forwarding address.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
DATED: JULY 6, 2017

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