KITCHEN v. ESSEX COUNTY CORRECTIONAL FACILITY et al

Filing 33

MEMORANDUM AND ORDER directing the Clerk to close the file on this matter on the grounds of pltf's failure to prosecute. Signed by Judge Jose L. Linares on 7/18/2013. (nr, )

UNITED STATES D
OURT
TT1CT C
FOR T DIspRIC OF NEW JERSEY

ARTHUR KITCHEN,

Plaintiff

Civil Action No.
12-2199 (JLL)

:

v.
ESSEX COUNTY CORRECTIONAL
FACILITY et

De
ts

n

This matter comes before the Court upon return of the
Clerk’s mailing sent to Plaintiff

fDocket Entry No.

32],

and it

aPpearing that:
On April 12,

2012,

Plaintiff submitted hi origifl
3

complaint asserting that he had been assaulted by
id

unidentif
2.

nal officers

correctio

LDocket Entry No.

1.]

The Court directed the Clerk to execute
service Upon the
Attorney General,

Who Was designated to act Solely as a

ve agent for
service;

constructi

the Court als directed
0

Plaintiff to file his amended complaint
)

Defendants

g

(identifyin

once the relevant records were Provided to him

by the Attorney General

1

iDocket Entry No.

23.

In conjuncti
with so ordering the Court screened
laintjfcr
plaint an explained to him: (1) the
P
com
Pleading
(2) that neither a correctio
Standard
1 facility nor a
t
a cognizaJ “person” for the
departmen of correction
purposes
n 1983 suit; and (3) the
of a Sectio
nti
Substa
Standard
to the Eights endment claims
applicabl
Docket Entry No. 2.]
L

3.

On November 18,

2012,

the Attorney General filed a letter

informing the Court that Plaintiff had been served with the
relevant records.
therefore,

[Docket Entry No.

17.]

The Court,

directed Plaintiff to file his amended pleading,

and later allowed him additional time to replead.
Entries Nos.

18 and 21.]

his amended complaint.
4.

In response,

[Docket

Plaintiff submitted

[Docket Entry No.

The Court screened the amended complaint

23.]
(which named,

as

Defendants in this matter,

the State of New Jersey,

Department of Corrections,

the Essex County Correctional

Facility and five correctional officers,
Melitta,

Williams,

Lynn,

i.e.,

Caggiano and Coleman)

the

Officers
and

determined that the amended complaint was insufficient under
the governing pleading standard.
Consequently,

[Docket Entry No.

25.]

the Court dismissed Plaintiff’s challenges

against all juridical entities with prejudice.

The Court

also explained to Plaintiff that his claims could not be
based on the theory of respondeat superior or on the fact
that someone was present at a certain location.
Therefore,

jçj,

Plaintiff was directed to file a second amended

complaint asserting facts showing each defendant’s personal
involvement in the alleged wrongs.
2

2

See jç at 3—S.

Plaintiff was allowed to serve upon the Attorney General a
‘well-thought-through questionnaire detailing his recollections
about his alleged assailants,” i.e., describing the appearances
Page 2 of

6

5.

In response,

Plaintiff filed a letter requesting that the

Court direct the Attorney General to conduct “interviews” of
the officers whom Plaintiff deems as potential witnesses in
order to provide Plaintiff with those “interviews”

and

allow him an opportunity to assert wrongful actions on the
basis of the information contained in those “interviews.”
3
[Docket Entry No.

27.]

The Attorney General filed a letter

objecting to Plaintiff’s request for such “interviews.”
[Docket Entry No.
6.

On May 15,

2013,

28.]
this Court issued a Memorandum Opinion and

Order finding Plaintiff’s application without merit.
Entry No.

31.]

application but,

Therefore,

[Docket

the Court denied Plaintiff’s

out of an abundance of caution,

allowed

Plaintiff one final opportunity to plead his claims in
accordance with the terms of the Court’s prior order.
id.
7.

The Clerk duly mailed this Court’s Memorandum Opinion
and
Order to Plaintiff.

[Docket Entry No.

32,

at 1.]

That

and/or other unique features, “in order to allow the
Attorney
General a meaningful and viable opportunity to search
the
records” and provide Plaintiff with the actual
names of the
officers Plaintiff described. [Docket Entry No. 25,
at 5.]
In other words, Plaintiff requested that the
Court direct
the Attorney General to conduct depositions of
the persons whom
Plaintiff deemed to be potential witnesses in order
to provide
Plaintiff with facts Plaintiff might incorporate
into his amended
pleading.
Page 3 of

6

mailing was sent on May 16,
receipt requested.

See jçj

was returned to the Clerk,
reading,

2013,

by certified mail,

On May 29,

2013,

return

that mailing

with the notation on the envelope

“RETURN TO SENDER.

REFUSED.

UNABLE TO FORWARD.”

Id.
8.

Generally,

if a mailing sent to a litigant is returned as

undeliverable,

the Clerk administratively terminates the

proceeding pursuant to Local Civil Rule l0.1(a),

which

requires unrepresented parties to advise the Court of any
change in address within seven days.

“Failure to file a

notice of address change may result in the imposition
of
sanctions by the Court.”

Local Civ.

R.

10.1(a).

The case

management tool of administrative termination is selected
because it has no effect other than to remove a case from
the Court’s active docket and permit the transfer of
records
associated with the case to an appropriate storage
repository,
arises.

while allowing for a swift reopening if the need

See Penn W. Assocs.

and n.

9

Corp.,

132 F.R.D.

50
9.

(3d Cir.

(3d Cir.

Here,

2004);
38,

v.

Cohen,

371 F.3d 118,

126-28

see also Mercer v. Allegheny Ludlum

38-39

(W.D.

Pa.

1990),

aff’d,

931 F.2d

1991).

however,

the Court’s Memorandum Opinion and Order was

returned to the Clerk as undeliverable because
Plaintiff
refused acceptance.

[Docket Entry No.

Page 4 of

6

32,

at 1.]

In light

_______

___________,

of Plaintiff’s systemic failure to file a viable amended
complaint regardless of the limited discovery Plaintiff was
availed to and this Court’s generous extensions of time to
file such pleading,

the Court construes Plaintiff’s refusal

to accept the Court’s Memorandum Opinion and Order as an
indication of Plaintiff’s election not to pursue his
challenges further.

Therefore,

the Court will conclusively

dismiss this matter for Plaintiff’s failure to prosecute.
Turner v.
at *6

149787,
Diaz,

No.

11—1690,

2012 U.S.

(S.D.

Oct.

2012); see also Rizzo v.

10—0180,

Nov.

26,

U.S.

Dist.

Indeed,

Cates, No.

2010)

Cal.

2010 U.S.

16,
Dist.

(same); White v.

LEXIS 95042

Dist.

LEXIS 125427

Clarke, No.

(N.D.N.Y Aug.

26,

LEXIS

(S.D.

08—0717,

2010)

Cal.
2010

(same).

Plaintiff was expressly warned by this Court that

his action will be terminated for failure to prosecute.
[Docket Entry No.

31,

IT IS,

on this

therefore,

at 6.]

day of

2013,

The Turner court relied on Ferdik v. Bonzelet, 963 F.2d
1258, 1260—61 (9th Cir. 1992)), which noted that, in determining
whether to dismiss a case for failure to prosecute or for failure
to comply with a court order “the district court must weigh five
factors including: ‘(1) the public’s interest in expeditious
resolution of litigation; (2) the court’s need to manage its
docket; (3) the risk of prejudice to the defendants; (4) the
public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic alternatives,’” so to
dismiss the case on the basis of plaintiff’s refusal to receive
court orders.
Page 5 of

6

ORDERED that the Clerk shall close the file on this matter
on the grounds of Plaintiff’s failure to prosecute; and it is
further
ORDERED that the Clerk shall make a new and separate entry
on the docket reading,

“CIVIL CASE CLOSED”;

and it is further

ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon the Attorney General by means of electronic
delivery;

and it is finally

ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Plaintiff by regular U.S. mail.

L. LINARES
ted States District Judge

Page 6 of

6