RICKS v. UDIJOHN et al
MEMORANDUM OPINION. Signed by Judge Freda L. Wolfson on 1/4/2017. (km)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Crim. Action No. 14-4079 (FLW)
DETECTIVE JAMES UDIJOHN, ET AL., :
Hon. Freda L. Wolfson, U.S.D.J.:
Before the Court is the Report and Recommendation of Magistrate Judge Lois Goodman,
dated July 7, 2016, recommending that this Court dismiss Plaintiff Ramon Ricks’ (“Plaintiff”)
Complaint with prejudice for failure to comply with Court orders and failure to prosecute,
pursuant to Fed. R. Civ. P. 37(b)(2) and 41(b). For the reasons set forth below, and for the
reasons included in the Report and Recommendation, Plaintiff’s Complaint is dismissed with
prejudice. Because the Court dismisses the Complaint with prejudice for failure to comply with
Court orders and failure to prosecute, the unopposed motion for summary judgment of
Defendants Detective James Udijohn, Detective James Nizolak, Detective Bill Perez, and
Sheriff’s Officer CJ McKenna (“Defendants”), is denied as moot.
BACKGROUND & PROCEDURAL HISTORY
Plaintiff initiated this action, pro se, on June 26, 2014, alleging that Defendants applied
unconstitutional, excessive force while arresting Plaintiff. The matter came before the Magistrate
Judge for an in-person Initial Conference on February 11, 2015. Plaintiff appeared at the
conference, pro se, and the Court set a discovery schedule with Plaintiff’s participation.
Subsequently, as set forth in detail in Magistrate Judge Goodman’s Report and
Recommendation, Plaintiff repeatedly failed to comply with the discovery schedule and
subsequent discovery orders, including orders from the Court directing Plaintiff to provide
adequate responses to Defendants’ interrogatories; and failed to appear for Court-ordered
telephonic and in-person conferences, including conferences scheduled on April 14, 2015, and
June 24, 2015. After Plaintiff’s repeated failures to appear, the Court issued an Order to Show
Cause, returnable October 15, 2015, as to why Plaintiff’s Complaint should not be dismissed for
failure to appear and failure to comply with discovery schedules. Plaintiff failed to appear at the
October 15 Order to Show Cause Hearing.
Plaintiff sent a letter on December 13, 2015, apologizing for failing to appear at the
Hearing and providing a colorable explanation for his failure to the Court. The Court therefore
scheduled an additional conference on March 8, 2016, at which Plaintiff appeared. At the March
8 conference, the Magistrate Judge set a new discovery schedule with Plaintiff’s participation
and warned Plaintiff that any future failure to appear for conferences or failure to comply with
the discovery schedule would result in a recommendation of dismissal without further hearing.
Plaintiff did not comply with the discovery schedule and failed to appear at the next conference
scheduled on May 2, 2016.
On June 10, 2016, Defendants moved for summary judgment on the basis of qualified
immunity and on the merits of Plaintiff’s claims. Plaintiff’s opposition was due on June 21,
2016. As of that date, Plaintiff did not file any opposition. Because Plaintiff had not filed a
response to Defendants’ pending motion for summary judgment or otherwise communicated
with the Court about his case, the Court, out of an abundance of caution, on July 6, 2016, sent
Plaintiff a letter informing him that the Court had not received an opposition from him and
warning him that if he did not respond to Defendants’ pending motion by Monday, July 18,
2016, the Court would consider the motion unopposed and might enter judgment in Defendants’
favor. Plaintiff did not respond to the Court’s letter and never filed an opposition.
On July 7, 2016, Magistrate Judge Goodman issued her Report and Recommendation,
recommending that Plaintiff’s claims be dismissed with prejudice for failure to comply with the
discovery schedule and failure to appear at Court-ordered conferences. Pursuant to L. R. Civ. P.
72.1(c)(2), Plaintiff had fourteen days from the date of the Report to file and serve objections to
its proposed findings. Plaintiff did not file an objection. On July 21, 2016, Defendants, by letter
brief, requested that Plaintiff’s Complaint be dismissed with prejudice, pursuant to Fed. R. Civ.
P. 41(b), for the reasons set forth in the Report and Recommendation and due to Plaintiff’s
failure to oppose Defendants’ motion or respond to the Court’s letter. Months have now passed
since Plaintiff was offered a final opportunity to oppose Defendants’ motion, and the Court has
not received any communications or filings from Plaintiff.
A District Court has the authority to dismiss a suit for failure to prosecute by virtue of its
inherent powers and pursuant to Federal Rule of Civil Procedure 41(b). Shipman v. Delaware,
381 F. App'x 162, 164 (3d Cir. 2010) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82
S.Ct. 1386, 8 L.Ed.2d 734 (1962)); Lee v. Krieg, 227 F. App'x 146, 148 (3d Cir. 2007). Federal
Rule of Civil Procedure 41(b) provides:
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.
Fed. R. Civ. P. 41. Failure to prosecute does not require that the party take affirmative steps to
delay the case. A failure to comply with court orders, failure to respond to discovery, or other
failure to act is sufficient to constitute lack of prosecution. Wortman v. Umrani, No. CIV A. 051411 FLW, 2006 WL 2347853, at *3 (D.N.J. Aug. 11, 2006) (citing Adams v. Trustees of the
New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 875 (3d. Cir. 1994)).
Ordinarily, to ensure “that a party still has [his or] her day in court,” Knoll v. City of
Allentown, 707 F.3d 406, 410 (3d Cir. 2013), the court must consider the six factors adopted by
the Third Circuit in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)
before dismissal. These factors include: (1) The extent of the party’s personal responsibility; (2)
the prejudice to the adversary caused by the plaintiff’s conduct; (3) the 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. Id.
No single Poulis factor is determinative and dismissal may be appropriate even if some of
the factors are not met. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992); Hicks v.
Feeney, 850 F.2d 152, 156 (3d Cir.1988). If a court finds dismissal appropriate under Poulis, it
may dismiss an action sua sponte, pursuant to its inherent powers and Federal Rule of Civil
Procedure 41(b). See Iseley v. Bitner, 216 Fed App'x 252, 254–55 (3d Cir. 2007) (citing Link v.
Wabash R.R. Co., 370 U.S. 626, 630–31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)).
Applying the Poulis factors in this case, the Court finds:
1. Plaintiff’s Personal Responsibility: Plaintiff brings this action pro se, and Plaintiff's
conduct alone appears to be responsible for his failure to prosecute.
2. Prejudice to Defendant: Plaintiff’s refusal to advance his case along with his failure to
comply with the Court’s Orders and to provide adequate discovery to Defendants has caused
manifest injustice to Defendants. Plaintiff’s repeated failure to appear at Court scheduled
conferences and failure to provide responses to Defendant’s discovery requests has left
Defendants unable to defend this case. Plaintiff’s actions, or, more appropriately, lack thereof,
support dismissal of this matter. See, e.g., Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir.
3. History of Dilatoriness: Plaintiff has a demonstrated history of dilatoriness in this case.
As set forth in the Report and Recommendation, Plaintiff failed to timely respond to Defendant’s
discovery requests, was afforded additional time in which to do so, and again failed to respond.
After Defendant failed to oppose Defendants’ motion for summary judgment, the Court once
more granted Defendant additional time in which to respond, only for no response to be
4. Willfulness or Bad Faith: The Court cannot definitively say that Plaintiff proceeded in
bad faith. The Court does, however, find that Plaintiff’s conduct has been willful. Plaintiff
repeatedly assured the Court that he would appear at conferences and comply with discovery
deadlines, most recently at the March 8, 2016 conference, only to fail to do so, even after being
afforded additional time.
5. Effectiveness of Alternative Sanction: The record of Plaintiff s unresponsiveness
suggests that alternative sanctions would be futile. Despite being given additional time to comply
with discovery obligations and motion briefing schedules, Plaintiff failed to do so. In addition,
Plaintiff failed to appear at Court scheduled conferences, even though the Court had informed
Plaintiff during the last conference he attended that the Court might recommend dismissal if he
did not appear. Moreover, the Court directly warned Plaintiff that it might dismiss his Complaint
with prejudice unless some opposition to Defendants’ motion or communication from Plaintiff
were received. On these facts, the Court finds that no lesser sanction would be effective. See
Joyce v. Continental Airlines, Inc., 09–2460(WJM), 2011 WL 2610098, *2 (D.N.J. June 15,
6. Meritoriousness of the Claims: In light of the stage of proceedings and Plaintiff’s
failure to provide sufficient discovery, the Court is unable to determine the meritoriousness of
Plaintiff’s claims, but observes from the undisputed facts submitted by Defendants, which are
deemed admitted, pursuant to Fed. R. Civ. P. 56(e) and L. R. Civ. P. 56.1(a), Defendants would
have had a high likelihood of success on their affirmative defense of qualified immunity were
Plaintiff to have prosecuted this action.
Accordingly, the Poulis factors weigh in favor of dismissal of Plaintiff’s Complaint.
Furthermore, where a party willfully abandons his case, or makes adjudication of a matter
impossible through his or her conduct, Poulis balancing is unnecessary. See, e.g., Spain v.
Gallegos, 26 F.3d 439, 454–55 (3d Cir. 1994) (party abandons her case); see also Seberell ex rel.
Seberell v. Philadelphia Police Dept., 159 F. App'x. 371, 373–74 (3d Cir. 2005) (affirming
dismissal without assessment of Poulis factors where Plaintiff refused to cooperate with Court's
order requiring her to complete required forms to the Marshal's service despite clear instructions
and warning that she would face dismissal for failure to comply with Court's order); Jackson v.
U.S. Bankr.Ct., 350 F. App'x 621, 624 (3d Cir. 2009) (per curiam) (Plaintiff's disappearance and
failure to oppose motions and communicate with the Court for more than a year rendered
assessment of Poulis factors unnecessary).
In Jackson, the Third Circuit found that strict adherence to Poulis was not required where
Jackson had “effectively abandoned the action” by “(1) his failure to respond to three pending
motions to dismiss, despite the District Court's sua sponte grant of three extensions of time in
which to do so; (2) his failure to attend a scheduled status conference, without contacting the
District Court or the defendants to seek a continuance or to excuse his absence; (3) his failure to
initiate any contact whatsoever with the District Court for over a year, despite substantial docket
activity in his case; and (4) his failure to file a motion to reopen the proceedings within the thirty
days directed in the District Court's dismissal order.” Id. The Court explained that “Jackson's
disappearance effectively made it impossible for the District Court to proceed with his case” and
that “dismissal was appropriate without strict adherence to Poulis.” Id. Here, the Court has
provided Plaintiff with ample time and opportunity to file a response to the Defendants’ motion
for summary judgment, but has received no response whatsoever from Plaintiff. There is also no
indication that the Court’s July 6, 2016 Letter Order did not reach Plaintiff, as it has not been
returned as undeliverable. Plaintiff’s failure to participate in discovery, failure to attend Court
conferences and hearings, and failure to oppose Defendants’ summary judgment motion
constitute willful abandonment of Plaintiff’s claims.
The Court adopts the July 7, 2016 Report and Recommendation, as supplemented by the
reasons set forth in this Opinion, and dismisses the Complaint with prejudice for failure to
comply with the Court’s discovery orders, pursuant to Fed. R. Civ. P. 37(b)(2); and for lack of
prosecution, pursuant to Rule 41(b). Because the Court has dismissed the Complaint with
prejudice under the forgoing provisions, it need not reach the merits of Defendants’ unopposed
motion for summary judgment, which is denied as moot. The Clerk of the Court is directed to
close the case accordingly.
/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge
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