BRAGG v. ARAMARK FOOD SERVICE et al
OPINION. Signed by Judge Anne E. Thompson on 8/1/2016. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BRIAN KEI'rH BRAGG, et al.,
HONORABLE ANNE E. THOMPSON
No. 13-4088 (AET-LHG)
ARAMARK FOOD SERVICE, et al.,
BRIAN KEITH BRAGG, Petitioner pro se
Turning Point, Suite 400
Barnett Medical Arts Complex
Patterson, New Jersey 07514
AUS - 9•:201
THOMPSON, District Judge:
:~i\M T. WALSH
Plaintiff Brian Keith Bragg filed a motion asking the Court
to reopen his civil suit that was dismissed with prejudice on
April 27, 2016. The Court construes this as a motion for
reconsideration. For the reasons set forth below, the motion is
On July 2, 2013, Plaintiff submitted a civil complaint
alleging violations of his constitutional rights pursuant to 42
U.S.C. § 1983, and an application to proceed in forma pauperis.
Complaint, Docket Entry 1. Specifically, Plaintiff alleged the
food served to inmates at the Mercer County Correctional Center
("MCCC") was not in compliance with "federal, state and local
sanitation, safety and health codes" and created
unconstitutional conditions of confinement. Id. at 4. He named
Aramark Food Service and several employees of the MCCC as
defendants. Id. at 7-13. Six additional MCCC inmates were named
as plaintiffs, but no in forma pauperis applications were
provided for those plaintiffs.
On July 16, 2013, Plaintiff Bragg filed a motion for leave
to amend the complaint. Motion to Amend, Docket Entry 2.
Adopting the original complaint in its entirety, Plaintiff
asserted additional and seemingly relevant facts to the original
complaint. On July 29, 2013, Plaintiff Bragg filed a motion to
proceed as a class action, Docket Entry 4, and on August 14,
2013, Bragg filed two motions: one to amend the complaint and
one to appoint class counsel. Docket Entries 6 and 7. The motion
to amend sought to add more defendants alleged by Plaintiff
Bragg to have participated in creating the unconstitutional
conditions of confinement. Docket Entry 7.
On August 19, 2013, Plaintiff Bragg signed an agreement to
dismiss the complaint with prejudice against the MCCC
defendants, Docket Entry 8. Mail sent to Plaintiff Bragg
regarding his pending motions was returned on August 23, 2013.
Docket Entry 9. On October 1, 2013, Michael Simpson filed a
motion to proceed as
representative as "Plaintiff Brian
. . made a settlement with Mercer County Counsel to drop
his name from this lawsuit." Docket Entry 10. More mail sent to
Plaintiff Bragg was returned as undeliverable on October 30 and
December 3, 2013. Docket Entries 14, and 17. Mail sent to
Plaintiffs Free, Sampson, Martinez, and Ford was also returned
to the Court as undeliverable. Docket Entries 11, 12, 13, and
On March 15, 2014, the Court ordered Plaintiffs Bragg,
Sampson, Martinez, and Ford terminated from the proceedings as
they had failed to update their addresses as required by Local
Civil Rule 10.l(a). March 15, 2014 Order, Docket Entry 18
The Court further determined that class certification was
premature given the "unsettled nature of the named parties and
7. The Court denied Plaintiff Bragg's
motions to amend, but granted Plaintiff Simpson leave to file
"complete, signed, amended complaint within sixty (60) days of
the date of this Order; if he does not do so, the case will be
deemed withdrawn[.]" Id. at 5. As Plaintiff Simpson did not file
an amended complaint within the time set forth by the Court, the
case was dismissed without prejudice on October 20, 2014. Docket
This matter was reassigned to the undersigned on November 19,
2013. Docket Entry 16.
A month after the case was dismissed, a new plaintiff,
Kevin Coney, filed a motion to amend the complaint and add new
parties. Docket Entry 20. After being absent from the case for
over a year, Plaintiff Bragg reappeared on December 8, 2014 and
filed a motion to amend the complaint. Docket Entry 21. The
Clerk's Office reopened the matter for review on April 21, 2015,
and on May 18, 2015, the mail sent to Plaintiff Bragg regarding
the reopening was returned to the Court as undeliverable. Docket
On August 31, 2015, the Court denied the motions to amend,
deemed Plaintiff Bragg withdrawn from the case once again. The
Court granted the remaining plaintiffs permission to file an
amended complaint within 60 days and closed the case. Docket
Entry 25. The Court's order was returned as undeliverable as to
several plaintiffs. Docket Entries 27, 28, ,and 29.
Plaintiff Bragg filed a change of address and motion for
the appointment of counsel on October 5, 2015. Docket Entries 33
and 34. On November 12, 2015, the Court received a letter from
Plaintiff Bragg inquiring as to why this complaint had been
dismissed. The Court explained via Opinion and Order dated
November 24, 2015 that the complaint had been dismissed on
October 30, 2014 as Plaintiff Simpson did not file an amended
complaint within the time period set forth by the Court.
November 24, 2015 Opinion, Docket Entry 39
22. It further
stated that as both Plaintiff Bragg's and Coney's motions to
amend had been denied on August 31, 2015, there was no active
complaint before this Court at that time. Id. 1 23. The Court
explained that even if there were an active complaint, it would
have to be administratively terminated as not all of the
remaining Plaintiffs had filed complete in forma pauperis
applications. Id. 1 24 (citing Hagan v. Rogers, 570 F.3d 146,
155-56 (3d Cir. 2009)
(requiring each joined IFP litigant to pay
a full individual filing fee)). The Court gave plaintiffs one
final chance to submit a proposed second amended complaint. Id.
1 26. The Court specifically stated "Plaintiff Bragg was deemed
withdrawn from this matter as he did not keep the Court apprised
of his address. Jf Plaintiff Bragg wishes to rejoin this matter,
he must .
keep the Court apprised of any change in his
address." Id. 1 28.
Plaintiff Bragg thereafter submitted a letter on December
7, 2015, stating he wished to reinstate his original complaint
and proceed as the sole plaintiff in this action. Docket Entry
41. The Court held that the original complaint could not act as
a second amended complaint as ?laintiff Bragg could not
unilaterally dismiss other plaintiffs from the case and it
sought to reinstate claims and defendants that Plaintiff
Bragg agreed to dismiss with prejudice on August 19, 2013.
April 27, 2016 Opinion,
Docket Entry 44 11 18-19. The Court
further took notice of the fact that a letter filed in
another action brought by Plaintiff Bragg indicated he had
been released from the MCCC in January 2016.
Id. 1 20. As
Plaintiff Bragg had been advised on several occasions by the
Court that he must keep a current address, no new address had
been provided for him, and plaintiffs had been given several
opportunities to amend their complaint, the Court dismissed
the complaint with prejudice. Dismissal Order, Docket Entry
On May 12, 2016, Plaintiff Bragg
to reopen the
case. Motion to Reopen, Docket Entry 48. He argued the case
should be reopened as he "has been trying to prosecute his
case and keep the Court up dated [sic] about [his] current
address." Id. 1 2. He also asserts he lacks legal skills and
knowledge about court procedure. Id. 1 3
III. STANDARD OF REVIEW
Local Civil Rule 7.1 allows a party to seek a motion for
reargument or reconsideration of "matter[s] or controlling
decisions which the party believes the Judge or Magistrate Judge
has overlooked . . . . "Local Civ. R. 7.l(i). Whether to grant a
motion for reconsideration is a matter within the Court's
discretion, but it should only be granted where such facts or
legal authority were indeed presented but overlooked. See DeLong
v. Raymond Int'l Inc., 622 F.2d 1135, 1140 (3d Cir. 1980),
overruled on other grounds by Croker v. Boeing Co., 662 F.2d 975
1981); see also Williams v. Sullivan, 818 F. Supp. 92,
93 (D.N.J. 1993).
To prevail on a motion for reconsideration, the movant must
( 1) an intervening change in the controlling law; ( 2)
the availability of new evidence, that was not available
when the court ... [rendered the judgment in question];
or (3) the need to correct a clear error of law or fact
or to prevent manifest injustice.
848-49 (3d Cir. 2014)
769 F.3d 837,
(citing Max's Seafood Cafe ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). The standard
of review involved in a motion for reconsideration is high and
relief is to be granted sparingly.
United States v.
F.R.D. 309, 314 (D.N.J. 1994).
In his motion asking the Court to reopen the complaint,
Plaintiff Bragg states he "has been trying to prosecute this
case and keep the Court up dated [sic] about [his] current
2. He asserts he lacks legal skills and
knowledge about court procedure. Id.
3. The Court finds these
arguments unpersuasive and contradicted by the record of this
matter and Plaintiff's litigation history. The Court sees no
reason to reconsider its dismissal of the complaint for
violations of the court rules and failure to prosecute. See
Donnelly v. Johns-Manville Sales Corp.,
677 F.2d 339, 341 (3d
(noting Rule 41(b) authorizes sua sponte dismissals
by court) .
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[.]" In determining whether dismissal as a
sanction pursuant to Rule 41(b) is warranted, courts consider
known as the Paulis factors:
party's peisonal responsibility;
(3) a history of dilatoriness;
willful or in bad faith;
(1) the extent of the
(2) prejudice to the adversary;
(4) whether the conduct was
(5) availability of alternative
(6) the meritoriousness of the claim. Paulis v.
State Farm Fire & Casualty Co., 747 F.2d 863, 868
1984) . 2
It is the responsibility of every unrepresented party,
whether incarcerated or not, to keep this Court apprised of his
or her current mailing address. Local Civ. R. 10.l(a). This is
Plaintiff Bragg's responsibility and his responsibility alone.
See Briscoe v. Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008)
is logical to hold a pro se plaintiff personally responsible for
These factors were considered by the Court
dismiss the complaint, but were not set out
April 27, 2016 opinion and order. The Court
Plaintiffs' benefit and completeness of the
in determining to
at length in its
does so now for
delays in his case because a pro se plaintiff is solely
responsible for the progress of his case . . . . "). Plaintiff
Bragg's statement that he "tried" to keep the Court apprised of
his address is unconvincing, as is his contention that he was
unaware of the relevant rules.
A PACER search, of which this Court takes judicial notice,
indicates Plaintiff Bragg has filed over 30 civil cases just in
this district. It is clear that even though he is proceeding pro
se, Plaintiff has sufficient legal understanding to follow the
court rules. It also cannot be plausibly argued that Plaintiff
Bragg was unaware of the requirement to keep the Court informed
of his address. In this matter alone, the Court terminated
Plaintiff Bragg from the case under Rule 10.1 on at least two
occasions: March 25, 2014 and August 31, 2015. Docket Entries 18
and 25. Each order specifically stated the termination was due
to Plaintiff Bragg's failure to keep the Court apprised of his
address. Moreover, Plaintiff Bragg clearly knew about the
requirement as he filed notices of address changes on October 5
and 15, 2015. Docket Entries 33 and 35. The Court also
specifically instructed Plaintiff Bragg to keep it apprised of
his address in its response to his inquiry as to why the case
had been closed in August 2015. November 24, ,2015 Opinion,
Docket Entry 39 i
28. Plaintiff Bragg has provided no reasons to
this Court why he continually failed to update his address;
therefore, the first factor supports dismissal.
The second Poulis factor requires the Court to consider the
prejudice to Defendants. Here, none of the complaints submitted
by plaintiffs have been permitted to proceed. However, the Court
notes that the passage of time since the initial filing would be
highly prejudicial to the Defendants in the event the complaint
proceeded. Were the Court to reinstate the complaint, Defendants
would be addressing allegations regarding the conditions of the
MCCC in 2013. Their ability to prepare a "full and complete"
defense would doubtlessly be impeded. Ware v. Rodale Press,
Inc., 322 F.3d 218, 222 (3d Cir. 2003). Furthermore, as noted by
.the Court in its opinion denying the request to permit the
original complaint to act as the second amended complaint,
Plaintiff Bragg settled with several defendants named in the
original complaint. See Stipulation of Dismissal, Docket Entry
8. Reinstating the original complaint would be highly
prejudicial to those parties by drawing them back into ligation
that was dismissed with prejudice
them in 2013. The
second Poulis factor also supports the Court's dismissal of the
The Court finds that Plaintiff Bragg has demonstrated a
history of dilatoriness by repeatedly failing to follow the
Court's directives and guidance. See Adams v. Trustees of N.J.
Brewery Employees' Pension Trust Fund, 29 F.3d 863, 874
("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."). As previously discussed, Plaintiff Bragg was
instructed on several occasions to keep his address current. His
repeated failure to do so and lack of any explanation for said
failure weighs in favor of dismissal.
There are insufficient facts to warrant an inference of bad
faith or willfulness, however. "Willfulness involves intentional
or self-serving behavior." Id. at 875. 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
or bad faith as [the Third Circuit] has defined
it." Adams, 29 F.3d at 876. While Plaintiff Bragg may be
inexcusably negligent, that is not enough to meet the Paulis
standard of willfulness. Ibid.
The fifth Poulis factor requires the Court to consider the
effectiveness of sanctions short of dismissal. Plaintiff Bragg
is proceeding pro se and has applied to proceed in forma
pauperis, therefore monetary sanctions would not be an effective
alternative. See Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d
Cir. 2002). The Court repeatedly instructed Plaintiff Bragg to
keep his address current and has administratively terminated the
action on prior occasions when he did not do so. 3 As these lesser
sanctions have not induced Plaintiff Bragg to follow the Court's
instructions, the Court finds no sanction short of dismissal
would be effective.
The final Poulis factor is the meritoriousness of the
Plaintiffs' claims. "Generally, in determining whether a
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. The proposed amended complaint
unilaterally dismissed other plaintiffs from the case and sought
to reinstate claims and defendants that Plaintiff Bragg had
agreed to dismiss with prejudice on August 19, 2013. See
Docket Entry 8. Such a complaint would not have survived a
motion to dismiss. This factors supports dismissal.
The Poulis factors overwhelmingly support dismissal. The
fact that Plaintiff Bragg has repeatedly failed to follow this
Court's directions and that any defendants would be prejudiced
in their ability to defend themselves are particularly
important. There is no reason to reconsider the Court's order or
reopen the case.
The Court also notes that many of the other Plaintiffs have
also failed to keep their addresses current.
For the reasons stated above, Petitioner's motion is
denied. An accompanying Order will be entered.
U.S. District Judge
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