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Gibbs v. Elliott

United States District Court, D. New Jersey

September 14, 2017

KAREEM GIBBS, Plaintiff,
v.
BERGEN COUNTY SHERIFF OFFICER JAMES ELLIOTT., et al, Defendants.

          REPORT & RECOMMENDATION

          LEDA DUNN WETTRE. UNITED STATES MAGISTRATE JUDGE

         This matter having come before the court by way of defense counsel's letter of August 16, 2017 (ECF No. 19), and for good cause shown, it is respectfully recommended that this action be DISMISSED without prejudice.

         BACKGROUND

         Pro se plaintiff Kareem Gibbs filed the instant action alleging violations of 42 U.S.C. § 1983 against defendants James Elliott, David Rubano, and other "John Doe" defendants in December 2016.' (ECF No. 1). At that time, plaintiff was incarcerated in the Bergen County Jail. He subsequently filed two letters with the Court that continued to list his return address as that of the Bergen County Jail. The dates of these letters indicate that plaintiff remained incarcerated at least as of March 2017. (ECF Nos. 13 (dated March 23, 2017 by plaintiff), 15 (dated January 3, 2017 by plaintiff)).

         At the end of March 2017, the Court granted defendants' second motion for an extension Plaintiff initially also named the Bergen County Sheriffs Department, the Bergen County Sheriff, and the Bergen County Jail, but District Judge Susan D. Wigenton dismissed the claims against those defendants. (ECF No. 2). Accordingly, the only remaining defendants are Elliott, Rubano, and the "John Doe" defendants. of time to answer plaintiffs Complaint. (ECF No. 12). A copy of that Order was mailed to plaintiff at the Bergen County Jail, but returned as undeliverable in April 2017. (ECF No. 16).

         Defendants answered the Complaint in May 2017, and the Court subsequently entered a Pretrial Scheduling Order on May 22, 2017. (ECF Nos. 17, 18). The Court's Scheduling Order directed the parties to file letters advising the Court of the status of discovery no later than August 22, 2017. (ECF No. 18). On August 16, 2017, defense counsel filed a letter stating they had been unable to effectuate service of their answer because plaintiff did not provide a forwarding address upon his release from the Bergen County Jail, nor had plaintiff contacted defense counsel regarding his case. (ECF No. 19). Accordingly, defendants had been unable to propound discovery. (Id.). As of the date of this Report and Recommendation, plaintiff has not contacted the Court or attempted to update his contact information, which still lists his address as that of the Bergen County Jail.

         DISCUSSION

         The Federal Rules of Civil Procedure authorize the Court to impose sanctions for failure to respond to Orders and for failure to prosecute a case. In both instances, dismissal may be appropriate. Fed.R.Civ.P. 37(b)(2), 41(b). The Third Circuit has identified six factors that courts should balance when deciding whether to impose an involuntary order of dismissal. See Poulis v.

         State Farm Fire and Cas. Co., 1A1 F.2d 863, 868 (3d Cir. 1984). 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 an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.

Id. (emphasis omitted). No single Poulis factor is determinative, and dismissal maybe appropriate even if some of the factors are not met. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). If a Court finds dismissal appropriate under Poulis, it may dismiss an action sua sponte, pursuant to its inherent powers and Rule 41(b). Iseley v. Bitner, 216 Fed.App'x 252, 254-55 (3d Cir. 2007) (citingLinkv. WabashR.R. Co., 370 U.S. 626, 630-31 (1962)).

         Here, a review of the Poulis factors shows that plaintiffs dilatoriness warrants dismissal.

         1. Plaintiffs Personal Responsibility. It appears that plaintiff is solely responsible for his failure to update his contact information or provide a forwarding address upon his release from the Bergen County Jail. See Macon v. City of Asbury Park, Civ. A. No. 07-1413 (MLC) (TJB), 2008 WL 1882899, at *2 (D.N.J. Apr. 24, 2008) (finding plaintiff "solely responsible" for failure update his contact information with the Court in case where a court order sent to the forwarding address plaintiff provided after his release from prison was returned as "undeliverable" and defense counsel was unable to contact plaintiff via that address).

         2. Prejudice to Defendants. Defendants have been prejudiced by plaintiffs inaction insofar as they have been unable to effect service of their Answer or propound discovery. See id.; see also Joyce v. Cont 'I Airlines, Inc., Civ. A. No. 09-2460 (MF), 2011 WL 2610098, at *2 (D.N.J. June 15, 2011), report and recommendation adopted, Civ. A. No. 09-02460 (WJM), 2011 WL 2607110 (D.N.J. June 30, 2011) (finding plaintiffs refusal to ...


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