JOHNSON v. U.S. MARSHAL et al

Filing 71

OPINION. Signed by Judge John Michael Vazquez on 4/13/2023. (qa, )

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RAHSHARD J. JOHNSON,
Plaintiff,
v.
PAUL O’CONOR M.D., et al.,
Defendants.

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Civil Action No.
17-2236 (JMV) (AME)
OPINION

VAZQUEZ, District Judge:
Plaintiff was formerly detained at the Essex County Correctional Facility in Newark, New
Jersey. Before the Court is Plaintiff’s Second Amended Complaint (“hereinafter Complaint”)
raising claims pursuant to 42 U.S.C. § 1983. (D.E. 11.) The Court had issued an Order to Show
Cause as to why the Court should not dismiss this matter under Federal Rule of Civil Procedure
41(b). (D.E. 69.) Plaintiff did not submit a response. For the reasons explained in this Opinion,
the Court will dismiss this matter without prejudice.
I.

BACKGROUND
This case arises from Plaintiff’s medical care when he resided at the Essex County

Correctional Facility. Plaintiff alleged that he was suffering from a serious medical condition
related to a cervical spine injury. (D.E. 11, at 1–2.) Plaintiff indicated that the Defendants denied
or delayed medical treatment regarding his spine injury. (Id. at 1–14.)
Plaintiff filed the instant Complaint in January of 2018, and the Court allowed the case to
proceed in part in February of 2019. (D.E. 11, 18.) After the conclusion of discovery, Defendants

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requested leave to file a motion for summary judgment in October of 2021. (D.E. 60.) On
November 9, 2021, the Court ordered Plaintiff to submit his arguments in response, a responsive
statement of material facts, and a supplemental statement of disputed material facts. (D.E. 63.)
The Court provided Plaintiff until November 23, 2021, to submit those documents. (Id.) Over a
year later, in February of 2022, Plaintiff submitted a request for an extension of time, due to the
COVID-19 pandemic, and the Court extended his deadline to June 24, 2022. (D.E. 66.) The Court
advised that there would be no further extensions. (Id.) The Court sent the Order to Plaintiff by
certified mail and received the return receipt. (D.E. 67.) Despite receiving the extension, Plaintiff
did not submit the required documents or otherwise respond to the Court.
In February of 2023, the Court issued an Order to Show Cause to Plaintiff as to why the
Court should not dismiss this matter under Rule 41(b) for failure to prosecute and for failure to
comply with the Court’s Orders. (D.E. 69.) Plaintiff did not submit a response. As of the date of
this Opinion, Plaintiff has not responded to the Court since February 22, 2022.
II.

STANDARD OF REVIEW & ANALYSIS
“The sanction of dismissal is an available tool within the district court’s discretion to

regulate its docket.” Duda v. Rentokil N. Am., Inc., No. 18-13930, 2020 WL 1227526, at *2–5
(D.N.J. Mar. 12, 2020) (quoting Khan v. Guardian Life Ins. Co. of Am., No. 16-253, 2017 WL
3317302, at *1 (D.N.J. Aug. 2, 2017)). Federal Rule of Procedure 41 states that “[i]f 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.” Fed. R. Civ. P. 41(b). However, dismissal is warranted only in
extreme cases. Poulis v. State Farm Fire & Cos. Co., 747 F.2d 863, 867 (3d Cir. 1984). If a court
is considering dismissing a case pursuant to Rule 41(b), it must apply the six-factor Poulis test to
determine whether dismissal is warranted. Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir.

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2013). The Poulis factors are as follows:
(1) the extent of the party’s personal responsibility; (2)
the prejudice to the adversary caused by the party’s actions or
inaction; (3) a history of dilatoriness; (4) whether the conduct of the
party 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, 747 F.2d at 868 (emphases in original).
While a court must consider and balance all six of the Poulis factors, it can dismiss a
complaint even if the case does not satisfy all six. U.S. v. $8,221,877.16 in U.S. Currency, 330
F.3d 141, 162 (3d Cir. 2003); Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). The decision
to dismiss “must be made in the context of the district court’s extended contact with the
litigant.” Mindek, 964 F.2d at 1373. Dismissal is ultimately a matter of the district court’s
discretion. Id. The Court addresses each Poulis factor in turn.
A. Extent of the Party’s Responsibility
The first Poulis factor concerns the extent of the party’s responsibility in failing to
prosecute. “Personal responsibility refers to whether the misconduct that occurred is attributable
to the party or to the party’s attorney.” Wortman v. Brown, No. 05-1411, 2006 WL 1044787, at
*2, (D.N.J. Apr. 18, 2006). When acting pro se, the party is considered personally responsible for
his or her actions. E.g., Hoffman v. Palace Entm’t, 621 F. App’x 112, 114 (3d Cir. 2015). In
situations that are directly attributable to a party’s personal failure, this factor often weighs strongly
in favor of dismissal. See, e.g., Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988) (holding that
failure to attend scheduled depositions and comply with discovery requests was the personal
responsibility of plaintiff); Hoffman, 621 F. App’x at 114 (weighing factor in favor of dismissal
where pro se plaintiff failed to respond to discovery requests and court orders).
Here, Plaintiff has been proceeding pro se and is therefore solely responsible for his failures
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to communicate with the Court. Plaintiff has failed to comply with the Order to Show Cause,
which directed Plaintiff to show cause as to why the Court should not dismiss the Complaint under
Rule 41(b). Plaintiff has brought this action to a standstill, without any explanation, which
suggests that Plaintiff does not intend to continue litigating his claims. Accordingly, the first
Poulis factor weighs strongly in favor of dismissal.
B. Prejudice to Other Parties
The second Poulis factor requires the Court to consider the prejudice to Defendants as a
result of Plaintiff’s failure to prosecute and failure comply with the Court’s Orders. Prejudice
includes “the irretrievable loss of evidence, the inevitable dimming of witnesses’ memories, or the
excessive and possibly irremediable burdens or costs imposed on the opposing party.” Adams v.
Tr. of N.J. Brewery Emps.’ Pension Tr. Fund, 29 F.3d 863, 874 (3d Cir. 1994)
(quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). Prejudice can also be “the
burden imposed by impeding a party’s ability to prepare effectively a full and complete trial
strategy,” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). Courts may also find that
a plaintiff’s failure to prosecute and follow court orders are “inherently prejudicial” to the
defendant. Emerson v. Thiel College, 296 F.3d 184, 190–91 (3d Cir. 2002). In other words, a
plaintiff’s failure to participate in the case and comply with court orders can prejudice the
defendant “by halting the progress of [an] action.” E.g., Brooklyn Waffles, LLC v. Silk City Snacks
LLC, No. 20-15846, 2022 WL 2251127, at *2–4 (D.N.J. May 19, 2022).
Plaintiff’s failure to participate in this case and comply with the Court’s Orders has
prejudiced the Defendants by halting the progress of this action and through the inevitable
dimming of witnesses’ memories. Adams, 29 F.3d at 874. Plaintiff’s last correspondence with the
Court was approximately fourteen months ago, and there is no indication that Plaintiff intends to

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resume prosecuting his claims. Accordingly, the second Poulis factor weighs in favor of dismissal.
C. History of Dilatoriness
The third Poulis factor requires the Court to look at the extent and history of Plaintiff’s
dilatoriness. “Extensive or repeated delays or delinquency constitutes a history of dilatoriness,
such as consistent non-response to interrogatories or consistent tardiness in complying with court
orders.” Adams, 29 F.3d at 874. In Poulis, the Third Circuit emphasized that counsel did not fail
to comply in a timely manner on one occasion, but rather exhibited “a pattern of
dilatoriness.” Poulis, 747 F.2d at 868. A failure to respond to court orders demonstrates a pattern
of dilatory conduct. Opta Sys., LLC v. Daewoo Elecs. Am., 483 F. Supp. 2d 400, 405 (D.N.J. 2007).
Plaintiff has demonstrated a history of dilatoriness since October of 2021. After the
conclusion of discovery, Magistrate Judge Espinosa ordered a telephone conference which took
place on October 25, 2021, but Plaintiff failed to dial in. (D.E. 60.) As a result, Plaintiff failed to
comply or respond to his first Order. Then, on November 9, 2021, the Court ordered Plaintiff to
submit his summary judgment arguments, a responsive statement of material facts, and a
supplemental statement of disputed material facts. (D.E. 63.) The Court provided Plaintiff until
November 23, 2021, to submit those documents. (Id.) The Court received no response from
Plaintiff until over a year later, in February of 2022, when Plaintiff submitted a request for an
extension of time, due to the COVID-19 pandemic. (D.E. 64.) The Court granted his request and
issued a second Order which extended his deadline to June 24, 2022. (D.E. 66.) The Court advised
that there would be no further extensions. (Id.) As a of the date of this Opinion, Plaintiff has not
complied with, or responded to, these two Orders. Finally, in February of 2023, the Court issued
an Order to Show Cause to Plaintiff as to why the Court should not dismiss this matter under Rule
41(b) for failure to prosecute and for failure to comply with the Court’s Orders. (D.E. 69.) Plaintiff

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did not respond to the Order to Show Cause, and indeed, has not corresponded with the Court in
nearly fourteen months. Accordingly, Plaintiff has demonstrated a pattern of dilatory conduct, and
the third Poulis factor weighs strongly in favor of dismissal.
D. Willfulness & Bad Faith Conduct
The fourth Poulis factor requires the Court to determine whether the conduct was willful
or in bad faith. “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at
875. If the record is unclear as to whether a party acted in bad faith, “a consistent failure to obey
orders of the court” can support a finding that a party’s actions are willful. E.g., Hunt-Ruble v.
Lord, Worrell & Richter, Inc., No. 10-4520, 2012 WL 2340418, at *5 (D.N.J. Jun 19, 2012).
In this case, based on this record, the Court cannot conclude that Plaintiff has engaged in
bad faith conduct. His repeated failures to comply with this Court’s Orders, however, demonstrate
that Plaintiff has willfully abandoned the litigation. Plaintiff has made no effort to comply with
his obligations to prosecute his claims or explain his inability to do so, despite the Court’s warning
of the consequences of failing to prosecute this action. As a result, under the fourth Poulis factor,
the Court finds that Plaintiff’s conduct was willful, and weighs in favor of dismissal.
E. Alternative Sanctions
The fifth Poulis factor requires the Court to consider alternative sanctions instead of
dismissal. Alternative sanctions include “a warning, a formal reprimand, placing the case at the
bottom of the calendar, a fine, the imposition of costs or attorney fees or the preclusion of claims
or defenses.” Titus v. Mercedes Benz of N. Am., 695 F.2d 746, 749 n. 6 (3d Cir. 1982). In some
cases, alternatives may be preferable to dismissal. For example, in Poulis, the Third Circuit
imposed fees directly on counsel because that was “[t]he most direct and therefore preferable
sanction for the pattern of attorney delay.” Poulis, 747 F.2d at 869. However, when the plaintiff

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appears unwilling to proceed with the litigation, alternative sanctions are ineffective. See Brooklyn
Waffles, 2022 WL 2251127, at *3; Hayes v. Nestor, No. 09-6092, 2013 WL 5176703, at *5 (D.N
J. Sept. 12, 2013).
Here, sanctions other than dismissal would not be effective. The delays in this case are the
result of Plaintiff’s conduct alone, and Plaintiff appears uninterested in pursuing this case. Since
Plaintiff has continuously disregarded the Court’s Orders and has refused to correspond with the
Court, the only sufficient sanction is dismissal. Therefore, the fifth Poulis factor weighs in favor
of dismissal.
F. Merits of the Claim
The final Poulis factor asks the Court to consider whether the claim or defense appears to
be meritorious. “A claim or defense, will be deemed meritorious when the allegations of the
pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete
defense.” Poulis, 747 F.2d at 869–70. In Hoffman, however, the Third Circuit expressed that a
plaintiff’s meritorious claim will not override a finding that the other factors lean in favor of
dismissal. Hoffman, 621 F. App’x at 116. Stated differently, if the other factors favor dismissal,
this factor will not prevent dismissal. See Opta Sys., 483 F. Supp. 2d at 405 (“[T]he inclusion of
this factor is largely neutral and does not change the Court’s conclusion that the balance of
the Poulis factors supports dismissal of this action.”); see also McEwen v. Mercer Cty. Correction
Ctr., 05-2566, 2007 WL 1217357, at *4 (D.N.J. Apr. 5, 2007).
Here, in their letter requesting leave to file a motion for summary judgment, Defendants
explained that:
Following his incarceration at ECCF as a federal detainee, he was
provided an MRI and surgery of the cervical spine was indicated.
Cervical spine surgery was performed in August 2017 at
UMDNJ/University Hospital.
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Plaintiff’s claims, as limited by the Court’s Order of February 3,
2019, arise between the time when he returned from the hospital
post-surgery in August 2017 and his transfer into federal custody in
March 2018.
During this period of time, Plaintiff received referrals to specialists
(Goldstein, Patel, Ploshchanskaya), was evaluated and treated by inhouse orthopedic surgeons (O’Connor and Kaiser), evaluated and
treated by correctional health care providers (Rizvi, Abdu Nafi,
Ojelade, Melendez, Ojelade) with input from the facility medical
director (Anicette) and had diagnostic testing performed in-house
and through outside providers, such as x-rays, MRIs and lab tests.
He also received medications for symptomatic treatment of pain and
related complaints, including Robaxin, Gabapentin (Neurontin),
Tylenol, Naprosyn and Tylenol iii with Codeine.
Plaintiff’s complaints are more directed to the results of his surgical
treatment as opposed to post-surgery care. He did not achieve the
results he would have preferred within the time-frame he expected.
This does not amount to deliberate indifference to a serious medical
need by the moving defendants. The defendants were not
deliberately indifferent to Plaintiff’s needs, provided diagnostic
testing, medications and follow-ups consistent with complaints by
Plaintiff and recommendations by specialists. In fact, the
documentary evidence establishes a lack of deliberate indifference
by these defendants. Further, orthopedic specialist Dr. Wendell
Scott performed a thorough records review and independent medical
examination of Plaintiff. His conclusions were that the surgery and
the post-surgery treatment by the moving defendants were
appropriate.
(D.E. 61, at 1–2.) Defendants also submitted a proposed statement of undisputed material facts,
along with exhibits, which tend to corroborate the assessment that Defendants were not
deliberately indifferent to Plaintiff’s needs. (D.E. 61-1.) Defendants’ position seem reasonable,
and Plaintiff has not attempted to rebut them. As a result, it appears that Plaintiff’s claims may
ultimately lack merit, but the standard under Poulis is whether “the allegations of the pleadings, if
established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869–70.
In any event, given that the other five factors weigh in favor of dismissal, this factor is at

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most “neutral” and will not prevent dismissal. In sum, each of the Poulis factors, save the final
factor, weighs in favor of dismissal, and the final factor is at best neutral. Accordingly, the Court
finds that dismissal of this case is appropriate.
III.

CONCLUSION
For the foregoing reasons discussed, the Court will dismiss the Complaint without

prejudice. An appropriate Order accompanies this Opinion.

April 13
Dated_____________________,
2023

_________________________
JOHN MICHAEL VAZQUEZ
United States District Judge

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