BROWN v. COHEN et al

Filing 31

OPINION. Signed by Judge Noel L. Hillman on 9/9/2021. (rtm, )(nm)

Case 1:17-cv-03436-NLH-SAK Document 31 Filed 09/09/21 Page 1 of 9 PageID: 179

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
NICHOLAS BROWN,
:
:
Plaintiff,
:
Civ. No. 17-3436 (NLH) (SAK)
:
v.
:
OPINION
:
:
:
DR. COHEN, et al,
:
:
Defendants.
:
______________________________:
APPEARANCES:
Nicholas Brown
4373718
Trenton Rescue Mission
98 Carroll Street
Trenton, NJ 08609
Plaintiff pro se
Stephen D. Holtzman, Esq.
Jeffrey S. McClain, Esq.
Holtzman McClain & Londar, PC
524 Maple Avenue
Suite 200
Linwood, NJ 08221
Counsel for Defendant Dr. Cohen
HILLMAN, District Judge
Defendant Dr. Todd Cohen moves to dismiss Plaintiff Nicolas
Brown’s complaint for lack of prosecution.

ECF No. 26.

Plaintiff filed a letter asking the Court to reopen his case,
which the Court construes as opposition to the motion.

ECF No.

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28.

For the reasons that follow, the Court will deny the motion

to dismiss.
In May 2017, Plaintiff filed a pro se complaint under 42
U.S.C. § 1983 against Defendant Dr. Todd Cohen for deliberate
indifference to Plaintiff’s medical needs while he was detained
in the Camden County Jail.
complaint to proceed.

ECF No. 1.

ECF No. 6.

submitted an amended complaint.

This Court permitted the

On August 15, 2018, Plaintiff
ECF No. 11.

The Court administratively terminated the complaint on
October 17, 2019 after mail sent to Plaintiff at his listed
address was returned as undeliverable.

ECF No. 15.

On July 7,

2020, Plaintiff wrote to the Court asking for his case to be
reopened.

ECF No. 17.

The Court reopened the matter and

instructed the Clerk to resend U.S. Marshal Form 285 to
Plaintiff.

ECF No. 18.

After Plaintiff returned the form, the

U.S. Marshals served Dr. Cohen with the complaint and amended
complaint on December 11, 2020.

ECF No. 23.

his answer on December 22, 2020.

Dr. Cohen filed

ECF No. 24.

Mail addressed to Plaintiff was returned as undeliverable
on January 4, 2021.

ECF No. 25.

Dr. Cohen filed a motion to

dismiss the case based on lack of prosecution and for
Plaintiff’s failure to update his address.

ECF No. 26.

Plaintiff filed a letter with the Court asking for his case to

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be reopened 1 because he did not have an available mailing address
after his released from jail.

ECF No. 28.

subsequently filed an updated address.
II.

Plaintiff

ECF No. 30.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 41(b) provides that

involuntary dismissal is appropriate “[f]or failure of the
plaintiff to prosecute or to comply with these rules or any
order of the court[.]”

A district court should consider six

factors when determining whether to dismiss a case under Rule
41(b).

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868

(3d Cir. 1984).

The relevant factors are:

(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.
Id. (emphasis omitted).

“None of the Poulis factors is alone

dispositive, and it is also true that not all of the factors
need to be satisfied to justify dismissal of a complaint for
lack of prosecution.”

Hildebrand v. Allegheny Cty., 923 F.3d

128, 132 (3d Cir. 2019).

The matter had not been closed after the Court received the
returned mail. See infra note 2.
1

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III. DISCUSSION
A.

The Extent of the Party’s Personal Responsibility
In general, it is Plaintiff’s responsibility to make sure

the case is progressing.

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 . .
. .”).

However, the Court’s review of the docket indicates that

some of the delays in this action since its 2017 filing do not
appear to be Plaintiff’s fault.

The complaint was originally

permitted to proceed on April 16, 2018, ECF No. 6, and summonses
were issued on May 8, 2018, ECF No. 9.

It is unclear whether

the complaint was served at the time.

Plaintiff submitted his

amended complaint on August 15, 2018.

ECF No. 11.

These delays

do not appear to have been within Plaintiff’s control.
On October 17, 2019, the Court administratively terminated
the complaint under Local Rule 10.1(a) after mail sent to
Plaintiff was returned.

ECF No. 15.

This delay may be

attributed to Plaintiff.
Plaintiff wrote to the Court inquiring as to his case
status in July 2020, ECF No. 17, at which time the Court
reopened the case and directed Plaintiff to resubmit U.S.
Marshal Form 285 for service.

ECF No. 18.

Plaintiff promptly

complied, ECF No. 21, and the U.S. Marshals served the complaint
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and amended complaint on Dr. Cohen.

ECF No. 23.

The Court has

not received any returned mail from Plaintiff that would
indicate further failure to comply with Local Rule 10.1. 2
Plaintiff states that he was experiencing homelessness
after his release from Camden County Jail and did not have an
address at which he could receive mail.

ECF No. 28.

Since the

filing of this motion, Plaintiff has updated his address with
the Court and communicated with Defendant.

The Court concludes

this factor is neutral.
B.

The Prejudice to the Adversary
The second Poulis factor requires the Court to consider the

prejudice to the adversary.
dismissal.

This factor weighs against

“[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.’”

Briscoe, 538 F.3d at 259 (quoting

Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)).
Dr. Cohen argues he has been prejudiced because
“Plaintiff’s failures make it impossible

. . . to conduct

On January 4, 2021, the Court received returned mail that had
been addressed to Plaintiff at the Camden County Jail. ECF No.
25. However, the writing on the envelope indicated the mail was
returned not because of an insufficient address but because the
jail requires mail to inmates to be in “white envelopes only.”
Id. The Court takes judicial notice that the envelopes used by
the Clerk’s Office for official business are white.
2

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discovery in a diligent and expeditious manner as required by
L.Civ.R. 26.1.”

ECF No. 26-3 at 3.

The Court considers this

factor to weigh against dismissal because Plaintiff has updated
his address and is participating in the case.

Dr. Cohen remains

free to seek appropriate discovery remedies if Plaintiff does
not comply with his discovery obligations in the future.
C.

History of Dilatoriness
“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 New Jersey Brewery Employees’

Pension Tr. Fund, 29 F.3d 863, 875 (3d Cir. 1994).

The Court

finds this factor to be neutral as there is some history of
delay in this case but not all of it can be attributed to
Plaintiff.
D.

Willfulness or Bad Faith
There are no facts to warrant an inference of bad faith or

willfulness.
behavior.”

“Willfulness involves intentional or self-serving
Id.

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.”
F.3d at 876.

Adams, 29

While Plaintiff may be negligent, that is not
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enough to meet the Poulis standard of willfulness.

The Court

weighs this factor in Plaintiff’s favor.
E.

Effectiveness of Other Sanctions
As dismissal with prejudice is an extreme sanction, the

fifth Poulis factor requires the Court to consider the
effectiveness of alternative sanctions.

Plaintiff is proceeding

pro se and in forma pauperis, therefore monetary sanctions would
not be an effective alternative.

See Briscoe, 538 F.3d at 262

citing Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir.
2002)).

However, the Court is not convinced that no effective

lesser sanctions are available.
The Third Circuit has “repeatedly acknowledged that
dismissals with prejudice or defaults are drastic sanctions that
must be a sanction of last, not first, resort.”

Hildebrand v.

Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019) (internal
quotation marks and citations omitted).

The Court has a variety

of evidentiary sanctions available if Plaintiff’s delay can be
shown to have actually impeded Dr. Cohen’s ability to defend
himself.

At this relatively early stage of the litigation, the

Court concludes there are alternative sanctions to dismissal;
therefore, this factor strongly weighs against dismissal.
F.

Meritoriousness of the Claims
Finally, the Court considers the meritoriousness of the

Plaintiff’s claims.

“Generally, in determining whether a
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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.
This Court screened the complaint under 28 U.S.C. § 1915
and permitted it to proceed.

ECF No. 3.

Plaintiff alleges Dr.

Cohen pulled the wrong tooth in providing Plaintiff dental care.
Such a claim should be heard on its merits.

This factor weighs

against dismissal.
G.

Balancing
The Court considers two of the Poulis factors to be neutral

in weight and four factors to weigh against dismissal.

The

number of factors is not dispositive of the outcome as “there is
no ‘magic formula’ or ‘mechanical calculation’” of the factors,
Hildebrand, 923 F.3d at 137, but the Court concludes the factors
against dismissal heavily outweigh the neutral factors.
The Court gives great weight to the strong preference for
claims to be decided on their merits and the fact that
alternative sanctions are available.

The minimal prejudice to

Dr. Cohen and the absence of a showing of bad faith also
strongly support the complaint remaining active.
It should be noted, however, that while the Court has
determined that the Poulis factors on whole do not warrant
dismissal at time, Defendant’s motion was not frivolous.
Plaintiff is reminded that any further delays in this matter
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attributable to Plaintiff, including failures to update his
address, may result in a different balancing of the relevant
Poulis factors in the future.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s motion to

dismiss the complaint for lack of prosecution shall be denied.
An appropriate Order follows.

Dated: September 9, 2021
At Camden, New Jersey

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

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