United States District Court, D. New Jersey
REPORT & RECOMMENDATION
DUNN WETTRE. UNITED STATES MAGISTRATE JUDGE
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.
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)).
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).
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.
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.
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
review of the Poulis factors shows that plaintiffs
dilatoriness warrants dismissal.
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
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