United States District Court, D. New Jersey
November 12, 2014
DAVID SPURGEON, Plaintiff,
THE N.J. STATE POLICE., et al., Defendants
DAVID SPURGEON, Plaintiff, Pro se, LEESBURG, NJ.
For NJSP Tpr. A. SPRAGUE #7071, NJSP Tpr. B. SANTOS #7252, NJSP Tpr. N. RUBINO #6878, NJSP Tpr. M. MCCURRY #5298, NJSP Tpr. G. ZAGAJA #6832, NJSP Tpr. Z. BAKA #6660, NJSP Tpr. I. KOLESAR #5727, NJSP tpr. E. FOLEY #5349, NJSP Lt. GUNDLAH #4795, NJSP Capt. WETZELBERGER #4255, NJSP Major CATULLO #3613, Defendants: GREGORY R. BUENO, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, STATE OF NEW JERSEY, TRENTON, NJ; VINCENT J. RIZZO, JR., OFFICE OF THE N.J. ATTORNEY GENERAL, RJ HUGHES JUSTICE COMPLEX, TRENTON, NJ.
For KPD Ptl. A. MARQUES #229, KPD Ptl. B. GREEN #201, KPD Ptl. S. DURKIN #177, KPD Ptl. F. MCINTYRE, KPD Ptl. S. MACFIE, Defendants, Cross Claimants: WILLIAM T. CONNELL, DWYER, CONNELL & LISBONA, ESQS., FAIRFIELD, NJ.
For JCPD C. ORTEGA #2787, (West District), JCPD M. RIVERA #2648 (West District), JCPD T. O'BRIEN, (SCU), JCPD Sgt.. T. CROWLEY, JCPD M. MANZO #2812, JCPD Lt. J. LATELLA, JCPD Lt. P. VELTRE, et al, Individually and as a Whole, and in their Official and Unofficial Capacities, Defendants: PRITI R. VAKHARIA, LEAD ATTORNEY, JERSEY CITY LAW DEPARTMENT, JERSEY CITY, NJ.
For KPD Ptl. S. MACFIE, KPD Ptl. A. MARQUES #229, KPD Ptl. S. DURKIN #177, KPD Ptl. B. GREEN #201, KPD Ptl. F. MCINTYRE, KPD Ptl. S. MACFIE, KPD Ptl. A. MARQUES #229, KPD Ptl. S. DURKIN #177, KPD Ptl. B. GREEN #201, Cross Claimants: WILLIAM T. CONNELL, DWYER, CONNELL & LISBONA, ESQS., FAIRFIELD, NJ.
For JCPD Sgt.. T. CROWLEY, JCPD C. ORTEGA #2787, (West District), JCPD Lt. P. VELTRE, et al, Individually and as a Whole, and in their Official and Unofficial Capacities, JCPD M. MANZO #2812, JCPD T. O'BRIEN, (SCU), JCPD Lt. J. LATELLA, JCPD M. RIVERA #2648 (West District), Cross Defendants: PRITI R. VAKHARIA, LEAD ATTORNEY, JERSEY CITY LAW DEPARTMENT, JERSEY CITY, NJ.
For NJSP Major CATULLO #3613, NJSP Tpr. I. KOLESAR #5727, NJSP Tpr. N. RUBINO #6878, NJSP Tpr. Z. BAKA #6660, NJSP tpr. E. FOLEY #5349, NJSP Lt. GUNDLAH #4795, NJSP Tpr. B. SANTOS #7252, NJSP Tpr. M. MCCURRY #5298, NJSP Tpr. A. SPRAGUE #7071, Cross Defendants: GREGORY R. BUENO, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, STATE OF NEW JERSEY, TRENTON, NJ.
For JCPD T. O'BRIEN, (SCU), JCPD Sgt.. T. CROWLEY, JCPD Lt. P. VELTRE, et al, Individually and as a Whole, and in their Official and Unofficial Capacities, JCPD M. MANZO #2812, JCPD Lt. J. LATELLA, JCPD M. RIVERA #2648 (West District), JCPD C. ORTEGA #2787, (West District), Cross Claimants: PRITI R. VAKHARIA, LEAD ATTORNEY, JERSEY CITY LAW DEPARTMENT, JERSEY CITY, NJ.
For NJSP Tpr. Z. BAKA #6660, NJSP Major CATULLO #3613, NJSP tpr. E. FOLEY #5349, NJSP Lt. GUNDLAH #4795, NJSP Tpr. I. KOLESAR #5727, NJSP Tpr. M. MCCURRY #5298, NJSP Tpr. N. RUBINO #6878, NJSP Tpr. B. SANTOS #7252, NJSP Tpr. A. SPRAGUE #7071, NJSP Capt. WETZELBERGER #4255, NJSP Tpr. G. ZAGAJA #6832, Cross Defendants: GREGORY R. BUENO, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, STATE OF NEW JERSEY, TRENTON, NJ.
For KPD Ptl. S. DURKIN #177, KPD Ptl. B. GREEN #201, KPD Ptl. S. MACFIE, KPD Ptl. A. MARQUES #229, KPD Ptl. F. MCINTYRE, Cross Defendants: WILLIAM T. CONNELL, DWYER, CONNELL & LISBONA, ESQS., FAIRFIELD, NJ.
REPORT AND RECOMMENDATION
MARK FALK, United States Magistrate Judge.
This matter comes before the Court by way of three separate motions to dismiss Plaintiff's Complaint for failure to provide discovery and comply with Court Orders. [CM/ECF Nos. 53, 56 and 65.] The motions are unopposed. The Court decides the motions on the papers. Fed.R.Civ.P. 78. For the reasons that follow, it is respectfully recommended that the motions be granted and the case be dismissed with prejudice.
This is a civil rights case. On June 4, 2012, pro se plaintiff David Spurgeon (" Plaintiff"), then an inmate at the Hudson County Correctional Center (" HCCC"), filed a complaint against, inter alia, officers of the Kearny Police Department (" Kearny Defendants"),  officers of the New Jersey State Police (" State Defendants"),  and officers of the Jersey City Police Department (" JCPD Defendants") (collectively referred to as " Defendants") asserting violations of 42 U.S.C. § 1983 based primarily on the allegation that he was beaten and subjected to racial slurs during an arrest in Jersey City, New Jersey on December 6, 2011. Defendants filed timely Answers.
By Letter Order dated February 28, 2013, the Court ordered the parties to provide estimates by March 28, 2013, of the time needed to complete discovery. [CM/ECF No. 20.] Plaintiff did not respond to the Order. Thereafter, on April 18, 2013, the Court entered a Scheduling Order pursuant to which all discovery was to be completed by September 1, 2013. [CM/ECF No. 26.]
Defendants served interrogatories and requests for production of documents on Plaintiff. Plaintiff failed to respond. Following approximately six months of inactivity and non-responsiveness from the Plaintiff, Defendants moved to dismiss for failure to provide discovery and failure to comply with Court Orders. [CM/ECF Nos. 31, 32 and 34.] After the Undersigned had recommended that the case be dismissed, the Court received a letter from Plaintiff acknowledging his receipt of the discovery and failure to provide answers, and requesting that the Court " please keep [his] case open." [CM/ECF No. 38.] The Court entered an Order on February 4, 2014, denying Defendants' motions without prejudice. The Order provided Plaintiff with " one final opportunity to participate in the discovery and litigation process, " directed Plaintiff to respond to Defendants' outstanding discovery by March 20, 2014, and expressly warned Plaintiff that he must respond to discovery and engage in the litigation or risk the dismissal of his case. [CM/ECF 39.]
Defendants, having not received Plaintiff's answers to discovery by March 20, 2014, renewed their motions to dismiss. [CM/ECF Nos. 40-42.] The motions were again unopposed. On April 23, 2014, in an abundance of caution, the Court again denied the motions without prejudice upon receipt of a letter from Plaintiff which appeared to include responses to some discovery served by some Defendants. [CM/ECF No. 45.] The Court's April 23rd Order directed that all discovery be completed by June 30, 2014, and provided that " given the delay that has already occurred, Plaintiff is directed to proceed expeditiously with any discovery" and warned that " failure to prosecute will not be excused . . . on account of Plaintiff's pro se status or incarceration." [CM/ECF No. 45.]
By letters dated April 17, 2014, and May 9, 2014, Kearny Defendants requested that Plaintiff provide more specific answers to interrogatories. According to Kearny Defendants' Counsel, Plaintiff did not provide responses. [CM/ECF No. 61.] On May 9, 2014, State Defendants filed a motion to take Plaintiff's deposition at his current place of incarceration, Bayside State Prison (" BSP"). On June 13, 2014, the Court granted the motion and permitted the deposition to proceed at BSP. [CM/ECF No. 54.] A Notice of Deposition was served on Plaintiff scheduling the proceeding for June 27, 2014. Plaintiff, individual counsel for each set of defendants (Kearny Defendants, State Defendants, JCPD Defendants) and a court reporter appeared at the deposition. Plaintiff repeatedly refused to answer any questions and refused to cooperate. [CM/ECF No. 61.] According to Kearny Defendants' Counsel, essentially " the deposition was not conducted." [CM/ECF No. 61.]
Defendants now move a third time to dismiss due to Plaintiff's failure to comply with the Court's Orders and failure to provide discovery. Defendants argue Plaintiff has failed to provide Rule 26 disclosures, answers to interrogatories,  and responses to document demands in violation of this Court's multiple Orders. Defendants represent that despite their repeated attempts to obtain responses, and notwithstanding the Court's Orders, Plaintiff has failed to provide the information requested. Defendants assert that Plaintiff's refusal to participate in his deposition is grounds for dismissal. Defendants argue that Plaintiff's refusal to cooperate impedes their ability to mount a fair defense, prohibits resolution of this matter and has prejudiced Defendants. In particular, Counsel for Kearny Defendants details the time and expense incurred as a result of Plaintiff's refusal to cooperate at his deposition:
I spent approximately two and a half hours preparing for the deposition of Mr. Spurgeon, approximately two and a half hours at Bayside State Prison for Mr. Spurgeon's deposition, and I drove over 300 miles which took six hours in travel time to and from [the prison]. I stayed in a hotel the night prior to the deposition. [CM/ECF No. 61, Ex. B.]
Pointing to the fact that this is the third time Defendants have moved to dismiss and that Plaintiff has been warned multiple times of the consequences of his continued noncompliance, Defendants argue that dismissal is the appropriate sanction.
The Federal Rules of Civil Procedure authorize courts to impose sanctions for failure to respond to court orders and for failure to prosecute a case. See Fed.R.Civ.P. 37(b)(2), 41(b). Dismissal may be an appropriate penalty in either instance. Id. The Court employs its sound discretion in determining what sanctions to impose. See Bowers v. NCAA, 475 F.3d 524, 538 (3d Cir. 2007) (citing Nat'l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam)).
">In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984) the Third Circuit identified six factors for courts to balance when deciding whether to impose the sanction of dismissal. 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) the history of noncompliance; (4) whether the conduct of the party or the attorney was wilful 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. 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).
This Court is generally required to fully analyze the Poulis factors in deciding whether to impose the sanction of dismissal. However, in cases where a party willfully abandons his case, or makes adjudication of a matter impossible, Poulis balancing is unnecessary. See, e.g., Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994) (party abandons her case); Sebrell v. Phila. Police Dep't, 159 Fed.Appx. 371, 373-74 (3d Cir. 2005) (party's conduct makes adjudication impossible). Following is a discussion of the Poulis factors in this case.
1. Plaintiff's Personal Responsibility. Plaintiff is solely responsible for his refusal to provide discovery and his failure to prosecute this case. As a pro se litigant, Plaintiff is personally responsible for his conduct. See, e.g., Rieder v. Gannon University, No. 12-1276, 481 Fed.Appx. 707, 2012 WL 1609171, *1 (3d Cir. May 9, 2012) ( pro se litigant was personally responsible for failure to appear). For example, Plaintiff has failed to respond to Kearny Defendants' April 17, 2014 and May 9, 2014 requests for more specific answers to interrogatories. [CM/ECF No. 61.] Similarly, Plaintiff has not answered State Defendants' interrogatories served at the opening of discovery more than one year ago. [CM/ECF No. 65-2.] Perhaps most egregious, Plaintiff refused to participate in his deposition after it was order by the Court to proceed at his place of incarceration and after Defendants expended substantial resources to set it up. Plaintiff has also failed to oppose this motion.
2. Prejudice to Defendants. Plaintiff's conduct has prejudiced the Defendants. Defendants have expended time and resources answering the Complaint, serving discovery, responding to this Court's Orders, arranging for and attending a deposition, and filing three separate motions to dismiss. Defendants have attempted to litigate this case since its inception more than two years ago. Plaintiff's conduct, however, has hindered Defendants' ability to defend this case, move beyond the initial states of discovery, or file any dispositive motions addressing the merits of Plaintiff's claims. Plaintiff has been given multiple opportunities, however he continues to disregard Orders of the Court in the face of several explicit warnings that his case would be subject to dismissal.
3. History of Dilatoriness. As outlined above, Plaintiff has exhibited a history of dilatoriness in that he has failed to fully respond to Defendants' written discovery demands and chose not to " participate" at his deposition. See Adams v. Trustees of N. J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994) (" Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent nonresponse to interrogatories, or consistent tardiness in complying with court orders."). Plaintiff's continued failure to actively prosecute this case constitutes dilatory conduct under Poulis.
4. Willfulness or Bad Faith. The Court cannot conclude that Plaintiff proceeded in bad faith. However, Plaintiff's conduct has been wilful. Plaintiff's disregard of Defendants' discovery demands, his non-compliance with this Court's February 4, 2014 and April 23, 2014 Orders, including his refusal to be deposed, must be construed as wilful. Plaintiff has had ample time and chances to comply with the Rules and Orders but has chosen not to do so. These circumstances support dismissal of the action.
5. Effectiveness of an Alternative Sanction. Plaintiff's history of non-responsiveness suggests that alternative sanctions would be futile. Despite numerous opportunities, Plaintiff has failed to participate in and prosecute this case.
6. Meritoriousness of the Claims. The Court is unable to determine the meritoriousness of Plaintiff's claims.
Plaintiff's failure to respond to Defendants' discovery demands and to oppose this motion suggests that Plaintiff has effectively abandoned his case. See Mindek, 964 F.2d at 1373 (" [J]udges, confronted with litigants who flagrantly violate or ignore court orders, often have no appropriate or efficacious recourse other than dismissal of the complaint with prejudice."). A balancing of the Poulis factors strongly weighs in favor of dismissal of the case with prejudice.
For the above stated reasons, it is respectfully recommended that Plaintiff's Complaint be dismissed with prejudice.
Counsel for Kearny Defendants is directed to serve a copy of this Report and Recommendation upon Plaintiff within 3 days of its entry.