GILLIAM v. CUZZUPE et al

Filing 115

ORDER denying without prejudice 101 Motion for Default Judgment; Defendants shall contact the prison where Plaintiff is presently confined to determine the prisons protocol for sending videos to inmates by no later than May 6, 2022; Defendants shal l re-send paper copies of their discovery responses no later than May 6, 2022, etc. Signed by Magistrate Judge Ann Marie Donio on 3/23/2022. (alb, n.m.) (Order mailed to Salem County Counsel, 110 Fifth St., Suite 400, Salem, NJ 08079 - modified on 3/24/2022 (slc)).

[D.I. 101]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DERRICK DASHAWN GILLIAM,

Civil No. 17-6282 (NLH/AMD)

Plaintiff,
v.
JOHN CUZZUPE, et al.,
Defendants.
ORDER
This matter comes before the Court by way of motion [D.I.
101] of Plaintiff, Derrick Dashawn Gilliam, for default judgment
for Defendants’ alleged failure to provide discovery in accordance
with a court order dated October 6, 2021. The Court has considered
the parties’ submissions and decides this matter pursuant to
Federal Rule of Civil Procedure 78(b). For the reasons that follow
and for good cause shown, Plaintiff’s motion is denied without
prejudice.
The
efforts

to

present
obtain

motion

discovery

arises

from

responses

Plaintiff’s

from

ongoing

Defendants.

The

background of this issue is set forth in the Court’s Order dated
October 6, 2021 and is incorporated herein by reference. (See Order
[D.I. 99], Oct. 6, 2021, pp. 1-3.) The Court, by Order dated August
2, 2021, previously required Defendants to respond to Plaintiff’s

discovery requests by no later than August 16, 2021. (Id. at p.
2.) On August 16, 2021, Defendants mailed their responses to
Plaintiff’s Rule 34 document requests, with the subject documents
contained on a USB drive, to Plaintiff at USP Hazelton, where
Plaintiff was incarcerated at the time. (Id. at p. 3.) Plaintiff,
however, did not receive the documents and therefore filed a motion
for entry of default judgment as a discovery sanction. (Id. at pp.
2-3.)

The

Court

denied

Plaintiff’s

motion

without

prejudice,

finding “no basis to conclude that Defendants failed to comply”
with the August 2, 2021 Order. (Id. at p. 5.) In so finding, the
Court noted a sworn declaration of counsel, a copy of a cover
letter

addressed

to

Plaintiff

enclosing

Defendants’

discovery

responses, and a copy of a return mail envelope sent from USP
Hazelton

to

defense

counsel,

which

demonstrated

that

counsel

attempted to serve discovery responses on Plaintiff, but the
responses were returned to sender. (See id.) In addition, the Court
noted that Plaintiff did not address the factors set forth in
Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d
Cir. 1984), which are relevant to a determination of whether the
sanction of default judgment is warranted. (Id. at p. 4.) Although
the Court did not impose sanctions at that time, the Court required
Defendants, by no later than October 20, 2021, to re-send to
Plaintiff paper copies of their discovery responses to the extent
such documents from the USB drive could be printed, to determine
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the prison’s protocol for sending videos to inmates with respect
to any discovery material on the USB drive that could not be
printed,

and

to

send

electronic

discovery

to

Plaintiff

in

accordance with the prison’s protocol. (Id. at p. 7.)
In the present motion, Plaintiff represents that he did
not receive discovery pursuant to the October 6, 2021 Order. (See
Pl.’s Pro Se Mot. for Default J. Due to Defs.’ Non-Compliance with
his Discovery Demands (hereinafter, “Pl.’s Mot.”) [D.I. 101], p.
1.) Plaintiff therefore again moves for default judgment as a
discovery sanction. (Id.) Plaintiff asserts that Defendants have
failed to respond to discovery on at least three occasions, even
after being ordered to do so by the Court. (Id. at p. 2.) Plaintiff
alleges

that

he

is

harmed

by

Defendants’

failure

to

produce

discovery because he is unable to view the videos in Defendants’
possession, which Plaintiff contends is “crucial” evidence in the
case. (Id. at p. 1.) Plaintiff argues that Defendants’ failure to
produce “core” evidence warrants imposition of the sanction of
default judgment. (Id. at p. 2.)
In

opposition,

Defendants

provide

a

declaration

of

counsel in which counsel represents that he mailed to Plaintiff on
October

12,

2021

an

envelope

which

contained

“Defendant’s

Fed.R.Civ. 34 reply and the subject documents that were gathered
from [his] clients and stored on a USB thumb drive.” (Decl. of
Michael M. Mulligan, Esq. (hereinafter, “Mulligan Decl.”) [D.I.
3

102], Nov. 14, 2021, p. 1, ¶ 1.) Defense counsel also represents
that John Cuzzupe, Warden of Salem County Correctional Facility,
“succeeded in contacting USP Hazelton authorities and received
specific instructions concerning the necessary labelling detail.”
(Id. at pp. 1-2, ¶ 2.) Counsel notes that the package sent to the
prison was not returned to sender. (Id. at p. 2, ¶ 3.) Counsel
also attached to the motion an envelope purporting to demonstrate
that Defendants’ discovery responses were mailed to Plaintiff, and
an

email

thread

between

defense

counsel

and

Warden

Cuzzupe

concerning efforts to contact the prison to identify the proper
manner of mailing discovery to Plaintiff. (Id., Exs. 001-005.)
Plaintiff

argues

in

his

reply

papers

that

the

representations made by counsel in opposition to the motion are
not supported by the exhibits attached to the declaration of
counsel. (See Pl.’s Reply/Objection to Defendants Opposition [D.I.
109],

p.

1.)

Plaintiff

asserts,

for

example,

that

the

email

correspondence between defense counsel and Warden Cuzzupe does not
demonstrate

that

the

warden

or

defense

counsel

received

instructions from the prison on sending discovery to Plaintiff.
(Id.

at

p.

2,

¶

3.)

Plaintiff

notes

that

the

email

thread

demonstrates only that Warden Cuzzupe called a number and left a
message but does not demonstrate that the warden spoke with anyone
at the prison. (Id. at p. 2-3, ¶¶ 4, 5.) In addition, Plaintiff
asserts that the envelope submitted by defense counsel does not
4

reflect postage information, nor have Defendants provided any
evidence of proof of mailing. (Id. at p. 2, ¶ 2.) Plaintiff
represents that if the USB drive was received by the prison, the
device would have been logged and maintained by prison employees,
so Defendants could have requested from the prison proof that the
device was received. (Id. at pp. 3-4, ¶¶ 6, 8.) Finally, Plaintiff
notes

that

defense

counsel

has

the

contact

information

for

Plaintiff’s counselor at the prison and could have contacted the
counselor to determine the appropriate method of delivering the
USB device to Plaintiff, yet defense counsel fails to explain why
he chose not to utilize the counselor as a point of contact. (Id.
at p. 1, ¶ 1.)
As

this

Court

noted

in

the

October

6,

2021

Order,

pursuant to Federal Rule of Civil Procedure 37(b)(2), the court
may enter an order “rendering a default judgment against the
disobedient party” when a party “fails to obey an order to provide
or permit discovery[.]” FED. R. CIV. P. 37(b)(2)(A)(vi). In deciding
whether to impose a sanction “that deprive[s] a party of the right
to proceed with or defend against a claim[,]” a court must consider
the six factors set forth in Poulis v. State Farm Fire and Casualty
Co., 747 F.2d 863, 868 (3d Cir. 1984). Hoxworth v. Blinder,
Robinson & Co., 980 F.2d 912, 919 (3d Cir. 1992). These factors
include: “(1) the extent of the party’s personal responsibility;
(2) the prejudice to the adversary caused by the failure to meet
5

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. (quoting Poulis, 747 F.2d at 868).
The Court again finds no basis to impose the drastic
sanction of default judgment at this time. Plaintiff does not
address all of the Poulis factors, instead asserting only that he
is prejudiced by Defendants’ failure to produce discovery and
noting a repeated pattern of dilatoriness. Plaintiff does not
demonstrate that Defendants are personally responsible for the
failure to comply with this Court’s October 6, 2021 Order, nor
does Plaintiff address the effectiveness of alternative sanctions
or the meritoriousness of his claims. In fact, it appears that
Defendants attempted to comply with this Court’s order when Warden
Cuzzupe reached

out

to

USP

Hazelton

to

obtain

the

requisite

information to mail discovery to Plaintiff. Furthermore, while the
Court agrees with Plaintiff that the documents attached to defense
counsel’s declaration do not confirm the representations made in
the

declaration,

1

the

documents

do

not

refute

counsel’s

For example, the email correspondence between defense counsel
and Warden Cuzzupe demonstrates that the warden contacted the
prison about sending discovery to Plaintiff, but the emails do not
demonstrate that the warden “received specific instructions
1

6

representations regarding his efforts to comply with the October
6, 2021 Order. Counsel represents under penalty of perjury that on
October

12,

2021

Defendants

mailed

a

package

to

Plaintiff

containing “the Defendant’s Fed.R.Civ. 34 reply and the subject
documents that were gathered from [Defendants] and stored on a USB
thumb drive.” (Mulligan Decl., p. 1, ¶ 1.) Therefore, the Court
finds that Defendants attempted to comply with the October 6, 2021
Order and thus concludes that sanctions are not warranted at this
time.
In so finding, the Court notes that since the filing of
this motion, Plaintiff was transferred to USP Terre Haute in
Indiana. Therefore, the Court will direct defense counsel to resend to Plaintiff at Plaintiff’s new address paper copies of
Defendants’ August 16, 2021 discovery responses, to the extent
such responses and documents can be printed. To the extent the
discovery

responses

include

material

that

cannot

be

printed,

including videos, defense counsel shall contact the new prison
where Plaintiff is confined to obtain the prison’s protocol for

concerning the necessary labelling detail.” (Mulligan Decl., p. 2,
¶ 2.) Moreover, the envelope attached to counsel’s declaration
does not contain postage information or otherwise indicate that it
was mailed. (Id. at Ex. 001.)
7

sending videos to inmates and shall follow the prison’s protocol
to attempt to serve Plaintiff with such material. 2
CONSEQUENTLY, for the reasons set forth above and for
good cause shown:
IT IS on this 23rd day of March 2022,
ORDERED that Plaintiff’s motion [D.I. 101] for default
judgment as a discovery sanction shall be, and is hereby, DENIED
WITHOUT PREJUDICE; and it is further
ORDERED that Defendants shall contact the prison where
Plaintiff is presently confined to determine the prison’s protocol
for sending videos to inmates by no later than May 6, 2022; and it
is further
ORDERED that Defendants shall re-send to Plaintiff by no
later than May 6, 2022 paper copies of their August 16, 2021
discovery responses, to the extent such responses and documents
can be printed, and shall comply with the prison’s protocol for
sending videos to inmates with respect to any discovery material
that cannot be printed; and it is further

The Court notes that new counsel has entered an appearance on
behalf of Defendant Salem County, although prior defense counsel,
Mr. Mulligan, is still the attorney of record for all remaining
defendants. This Court has scheduled two conferences since the
substitution of counsel on December 31, 2021, and neither defense
counsel appeared at either of the conferences. (See Scheduling
Order [D.I. 111], Jan. 24, 2022; Order [D.I. 112], Feb. 9, 2022.)
The Court shall schedule a telephone conference by separate order
to address compliance with this Order.
2

8

ORDERED that compliance with the above directives is
required, and failure to comply may result in the suppression of
defenses in the discretion of the Court.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
cc:

Hon. Noel L. Hillman

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