United States District Court, D. New Jersey
JOHN C. MARTOCCI, Plaintiff,
JAMES F. HYMAN, etc., et. al., Defendants.
REPORT AND RECOMMENDATION
Michael A. Hammer UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on this Court's January 2,
2018 Order to Show Cause why Plaintiff's Complaint should
not be dismissed for failure to prosecute pursuant to Federal
Rule of Civil Procedure 41. D.E. 68. Plaintiff failed to file
a response to the Order to Show Cause and appear for a
telephone conference held before the Undersigned on March 15,
2018. Pursuant to Federal Rule of Civil Procedure 78, the
Undersigned did not hear oral argument and has considered
this matter on the papers. For the reasons below, the Court
respectfully recommends that the District Court dismiss
Plaintiff's Complaint with prejudice.
January 7, 2016, Plaintiff, who was a state inmate at that
time, filed the instant Complaint against employees of both
Harbor House and the Talbot Hall Assessment Center, seeking a
change in his halfway house classification from
“moderate treatment” to work release. Complaint,
D.E. 1. Defendants submitted a letter to the Court dated
December 28, 2017, D.E. 67, advising the Court that Plaintiff
pro se has failed to respond to any discovery
requests. Plaintiff was required to serve all outstanding
written discovery responses by November 20, 2017. Amended
Pretrial Scheduling Order, Oct. 27, 2017, D.E. 66.
this Court directed Plaintiff to show cause in writing by
January 24, 2018 why this action should not be dismissed for
failure to prosecute pursuant to Federal Rule of Civil
Procedure 41 and failure to comply with this Court's
Orders. See Order to Show Cause, January 2, 2018,
D.E. 68. Plaintiff failed to respond. Additionally, the Court
set a telephone conference for March 15, 2018. Plaintiff
failed to appear for the call. Moreover, the record reflects
that Plaintiff neither contacted Defendants nor the Court to
seek an extension of the deadlines by which to produce
Standards for Dismiss under Federal Rule of Civil Procedure
of a plaintiff's complaint may be appropriate under
Federal Rule of Civil Procedure 41(b) “if the plaintiff
fails to prosecute or to comply with these rules or a court
order.” Fed.R.Civ.P. 41(b). In Poulis v. State Farm
Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the
United States Court of Appeals for the Third Circuit provided
the factors that this Court must weigh in determining whether
to dismiss a complaint pursuant to Fed.R.Civ.P. 41(b).
Specifically, the Court must consider six factors in deciding
whether the sanction of dismissal is appropriate: (1) the
extent of the party's personal responsibility, (2)
prejudice to the adversary, (3) history of dilatoriness, (4)
willful or bad faith conduct of an attorney, (5) alternative
sanctions, and (6) meritoriousness of the claim or defense.
Poulis, 747 F.2d at 868; Emerson v. Thiel
College, 296 F.3d 184, 1903d Cir. 2002) (applying
Poulis factors). No single Poulis factor is
dispositive, and dismissal may be appropriate even if some of
the factors are not met. Hovey v. LaFarge North America
Inc., Civ. No. 07-2193, 2008 WL 305701, *2 (D.N.J. Jan.
29, 2008) (citing Mindek v. Rigatti, 964 F.2d 1369,
1373 (3d Cir. 1992)). See also Rosado v. Adams, Civ.
No. 07-1914, 2009 WL 1181217, *1-3 (M.D. Pa. April 30, 2009)
(applying Poulis analysis to dismissal for failure
to prosecute under Fed.R.Civ.P. 41(b)); Vrlaku v.
Citibank, Civ. No. 05-1720, 2005 WL 2338852, *2-3
(D.N.J. Sept. 23, 2005) (same, and noting that “[a]
Court may raise a motion to dismiss an action under Rule 41
sua sponte under its inherent case management
powers.”). See also OPTA Systems, LLC v. Daewoo
Electronics America, 483 F.Supp.2d 400, 404 (D.N.J.
2007) (“Failure to prosecute does not require that a
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.”) (citations omitted). Although not all
these factors necessarily apply in every case, the Court is
obligated to consider any factors that do apply.
Consideration of the Poulis Factors
The extent of the party's personal
instant case, Plaintiff has failed to respond to the Orders
of this Court requiring responses to written discovery. Nor
has Plaintiff contacted the Court to explain his failure to
comply. As a result, this case has been brought to a virtual
standstill with no indication that Plaintiff intends to
continue to prosecute his claims. Accordingly, the
Undersigned can conclude only that Plaintiff does not intend
to further litigate his claims and has willfully chosen to
abandon this suit.
Court recognizes that as a pro se litigant,
Plaintiff is not represented by counsel and may encounter
challenges that a represented party would not face. However,
at the same time, Plaintiff cannot contend that his failure
to prosecute this matter is the fault of counsel.
See, e.g., Clarke v. Nicholson, 153
Fed.Appx. 69, 73 (3d Cir. 2005), cert. denied, 548
U.S. 907 (2006) (“[U]nlike a situation in which a
dismissal is predicated upon an attorney's error, the
plaintiff here was pro se and directly responsible
for her actions and inaction in the litigation.”).
Moreover, the record reflects that Plaintiff's failure to
prosecute is not the result of his inability to comprehend or
address a highly complicated or technical legal issue; it is
the result of Plaintiff's failure to take basic action
necessary to prosecute his claims, such as responding to
discovery when directed to do so, responding to Court Orders,
or explaining his inability to do so. In any event, a pro
se plaintiff is solely responsible for prosecuting his
case. Briscoe v. Klaus, 538 F.3d 252, 258-59 (3d
Cir. 2008) (citations omitted).
the first Poulis factor weighs in favor of