The opinion of the court was delivered by: Honorable Madeline Cox Arleo
REPORT AND RECOMMENDATION
Plaintiff Keyenn Charles ("Plaintiff") filed the Complaint in the Superior Court of New Jersey, Law Division, Essex County on August 23, 2006. The Complaint alleged common law claims of medical malpractice and negligence. On July 25, 2007, Plaintiff filed a Second Amended Complaint in the Superior Court of New Jersey, Law Division: Essex County. On August 17, 2007, Judge Verna G. Leath, J.S.C., entered an Order granting Plaintiff leave to file a Third Amended Complaint, which he did on August 27, 2007. On September 7, 2007, Defendant Correctional Health Services, Inc. ("Correctional Health"), filed a Notice of Removal with the Superior Court of New Jersey, Law Division, Essex County, and with this Court. The Notice asserts that this Court has subject matter jurisdiction over this dispute pursuant to 42 U.S.C. § 1983 because Plaintiff's Third Amended Complaint alleges violations of his civil rights.
On March 19, 2008, Benjamin Levine, Esq., filed a Motion to be relieved as counsel for Plaintiff. On April 2, 2008, this Court entered an Order granting Levine's motion to be relieved as counsel, and Plaintiff was deemed to be proceeding pro se. A Court-Ordered status conference was scheduled for May 2, 2008. Plaintiff failed to appear for the Court-Ordered status conference. On May 7, 2008, this Court entered an Order to Show Cause why monetary/reprimand sanctions should not be imposed for Plaintiff's failure to appear. The Order was returnable on May 29, 2008. Plaintiff appeared at the Order To Show Cause and requested additional time to retain counsel. By Letter Order dated May 30, 2008, this Court adjourned the Order to Show Cause to July 16, 2008 to give Plaintiff an opportunity to retain counsel. Plaintiff failed to appear on July 16, 2008 and no counsel appeared on his behalf. Neither plaintiff nor counsel has contacted the Court since.
Plaintiff's failure to prosecute this action and to comply with Court Orders requires this Court to determine the appropriate sanctions to impose. Pursuant to FED. R. CIV. P. 16(f), the Court is authorized to Order the sanction of dismissal when a party has willfully disobeyed pre-trial Orders of the Court. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d. Cir. 1992). Based on the analysis stated below, I recommend that Plaintiff's Third Amended Complaint be dismissed.
In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit set forth six factors which must be considered in determining whether to dismiss a Plaintiff's action. Poulis, 747 F.2d at 868. The Poulis factors are:
(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (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 ane analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense." Id. at 868. The Court is required to balance each factor in its analysis. Id.
1. The Extent of Plaintiff's Personal Responsibility
Plaintiff is proceeding pro se. He is, therefore, personally responsible for failing to appear before this Court. His failure to appear and prosecute his case demonstrates a willful decision to disregard the orders of this Court. Plaintiff was warned that continued failure to comply would result in sanctions. He ignored this Court's Order of May 7, 2008.
Plaintiff is not exempt from responsibility for failure to abide by this Court's orders simply because he has not secured counsel and, thus, is treated as a pro se litigant. "[A]ll litigants, including pro ses, have an obligation to comply with Court orders. When they flout that obligation, they, like all litigants, must suffer the consequences of their actions." Burns v. Glick, 158 F.R.D. 354, 356 (E.D. Pa. 1994). Plaintiff failed to comply with Court Orders to appear. Accordingly, these factors favor the dismissal of Plaintiff's Third Amended Complaint.
2. Prejudice to Defendants
Because Plaintiff disregarded Court Orders, the Defendants are incapable of defending any of Plaintiff's claims against them. Despite Orders from this Court, Plaintiff has not attended in-person conferences. Indeed, based on Plaintiff's inaction, it is impossible for Defendants to know his allegations and adequately respond to same.
The Third Circuit addressed Poulis' "prejudicial harm" standard in Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). There, the Plaintiff failed to provide defendant with specific information and documentation concerning the damages calculation in a timely fashion. The Court explained that "while prejudice for the purpose of Poulis analysis does not mean 'irremediable harm,' the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial." Id. Prejudice also includes "the irretrievable loss of evidence, in the inevitable dimming of witnesses' memories, or the excessive and possibly ...