KING v. X. PONCE et al
Filing
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OPINION. Signed by Chief Judge Renee Marie Bumb on 3/27/2024. (jab,N.M.)
**NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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: CIV. NO. 21-5628 (RMB-AMD)
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OPINION
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MARKIESE KING,
Plaintiff,
v.
XAVIER PONCE, et al.,
Defendants
RENÉE MARIE BUMB, Chief United States District Judge
This matter comes before the Court upon Defendant’s letter request, which
this Court construes as a motion under Federal Rule of Civil Procedure 41(b), to
dismiss this action based on Plaintiff’s failure to prosecute. (Motion, Dkt. No. 53.)
On November 29, 2023, this Court granted Defendants’ motion to dismiss Plaintiff’s
Bivens claims in his amended complaint. (Order, Dkt. No. 49.) Plaintiff’s pro bono
counsel, having been appointed for the limited purpose of representing Plaintiff on
his Bivens claims, withdrew from the case. (Letters, Dkt. Nos. 50, 51.) Therefore,
this Court ordered Plaintiff to inform the Court, by February 9, 2024, whether he
intended to prosecute his claim for injunctive relief. (Order, Dkt. No. 52.) The time
to respond has passed, and Plaintiff has not responded to this Court’s order.
Therefore, the Court will determine whether dismissal, with prejudice, under Federal
Rule of Civil Procedure 41(b) is appropriate.
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Federal Rule of Civil Procedure 41(b) provides,
(b) Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim
against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not
under this rule--except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.
Because dismissal with prejudice is a “drastic sanction,” this Court must determine
whether the following factors support the sanction: (1) the extent of the party 's
personal responsibility; (2) the prejudice to the adversary …; (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 & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).
Plaintiff is now personally responsible, as a pro se litigant, for prosecuting his
claim for injunctive relief. Defendants are prejudiced if the case is not dismissed
because they must continue to retain counsel in a case where Plaintiff has ignored the
Court’s direction to advise whether he intends to prosecute the case pro se, after his
claims for damages were dismissed and pro bono counsel withdrew. Although
Plaintiff has not displayed a history of dilatoriness, it appears given his lack of
response that he simply does not intend to prosecute this matter further. It is not
known whether Plaintiff’s failure to respond to the Court’s order was willful. Where
the very issue Plaintiff failed to address is whether he intended to continue to
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prosecute this action pro se, as to injunctive relief only, an alternative sanction beyond
dismissal would not be effective. Finally, although Plaintiff’s claims had sufficient
merit to proceed beyond screening for failure to state a claim, intervening Supreme
Court precedent supported Defendants’ motion to dismiss the Bivens claims for
damages, leaving only a claim for injunctive relief. The Poulis factors weigh in favor
of dismissal with prejudice under these unique circumstances. The Court will dismiss
the amended complaint (Dkt. No. 22) with prejudice, pursuant to Federal Rule of
Civil Procedure 41(b).
An appropriate Order follows.
Date: March 27, 2024
s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge
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