United States District Court, D. New Jersey
B. KUGLER UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Joseph
Hawtin's motion to dismiss for lack of prosecution on
January 12, 2018. (ECF No. 65.) Months later, on March 29,
2018, Plaintiff has not responded to or otherwise opposed the
motion. Defendant's motion is GRANTED.
McDaniel, proceeding pro se, was formerly
incarcerated at the Federal Correctional Institution at Fort
Dix, New Jersey. While there, he filed this action against
several employees of the Federal Bureau of Prisons, alleging
a number of constitutional violations. This Court, on May 19,
2014, dismissed all claims except McDaniel's excessive
force claim against Correctional Officer Joseph Hawtin.
17, 2017, the Court entered a scheduling order under which
Plaintiff was required to submit his portion of the Joint
Final Pretrial Order by August 11, 2017. (ECF No. 57.)
Plaintiff responded with a letter raising a number of
discovery issues, and in response the Court directed
Defendant to respond to the letter, and to thereafter submit
a Joint Final Pretrial Order by September 15, 2017. (ECF No.
59.) The Court's order warned that “failure to
comply may result in dismissal of your case.”
(Id.) In compliance with this order, Defendant
submitted a letter addressing Plaintiff's discovery
concerns and provided a draft Pretrial Order. (ECF No. 60.)
Defendant also informed the Court that Plaintiff had not
submitted any information to include. (Id.)
was followed by another Scheduling Order on September 20,
2017, directing Plaintiff to submit his portions of the Joint
Final Pretrial Order by October 6, 2017 and again warning
that failure to comply could result in dismissal. (ECF No.
61.) On October 25, 2017, the Court entered a letter order
stating the same. (ECF No. 62.) That letter was returned to
the Court as undeliverable, although it was addressed to
Plaintiff's listed address on the docket. (ECF No. 63.)
December 12, 2017, this Court granted “one final
extension until January 5, 2018” for Plaintiff to
submit his portions of the Final Pretrial Order. (ECF No.
64.) The Court stated that “[i]f Plaintiff fails to
cooperate with defense counsel in preparing his portion of
the Order, Defendant is granted leave to file a motion to
dismiss for failure to prosecute. Any such motion shall be
filed by January 12, 2018.” (Id.)
January 12, 2018, Defendant filed this motion. No response
has been forthcoming as to either the Joint Final Pretrial
Order or the motion to dismiss.
defendant may move for dismissal of an action for the
plaintiff's failure to prosecute. Fed.R.Civ.P. 41(b). The
decision to dismiss is in the trial court's discretion.
Before dismissing a case, courts in the Third Circuit
normally examine the factors set forth in Poulis v. State
Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.
1984). Under Poulis, the Court must evaluate: (1)
the extent of the party's personal responsibility; (2)
the prejudice to the adversary caused by the failure to
respond; (3) a history of dilatoriness; (4) whether the
conduct of the party was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal; and (6) the
meritoriousness of the claim or defense. Poulis, 747
F.2d at 868.
because Plaintiff proceeds pro se, he bears full
responsibility for any delay. Brisco v. Klaus, 538
F.3d 252, 258-59; Hamilton v. Trans Union, LLC, No.
16-7974, 2017 WL 453339, at *2 (D.N.J. Aug. 29, 2017).
“[I]t is logical to hold a pro se plaintiff
personally responsible for delays in his case because a pro
se plaintiff is solely responsible for the progress of his
case, whereas a plaintiff represented by counsel relies, at
least in part, on his or her attorney.”
Briscoe, 538 F.3d at 258-59.
“the burden imposed by impeding a party's ability
to prepare effectively for a full and complete trial strategy
is sufficiently prejudicial” for purposes of the
Poulis analysis. Ware v. Rodale Press,
Inc., 322 F.3d 218, 222 (3d Cir. 2003). Defendant has
been prejudiced by the delay and Plaintiff's
non-responsiveness. As to the third factor, Plaintiff has
failed to respond to several court orders in succession, each
warning that failure to comply could result in dismissal of
his complaint. Although we cannot comment on whether
Plaintiff has ignored these orders in bad faith, we must
assume, as a pro se litigant in control of his own
lawsuit and without evidence to the contrary, that he is at
least willfully doing so.
respect to sanctions other than dismissal, the fifth factor,
other means of sanctions, such as the imposition of fees and
costs, are often inappropriate. Briscoe, 528 F.3d at
263. See also Emerson v. Thiel College, 396 F.3d
184, 191 (3rd Cir. 2002) (“no effective alternative
sanctions to dismissal” where plaintiff proceeded in
forma pauperis and assessment of attorneys' fees not a
serious consideration). Although we do attach much weight to
this factor here, this nonetheless weighs in favor of
the sixth Poulis factor weighs in favor of
Plaintiff, as we accept the allegations in the amended
complaint as true and have already found Plaintiff's
complaint withstands 12(b)(6) dismissal under 28 U.S.C.
§ 1915A. See Phillips v. Cty. of Allegheny, 515
F.3d 224, 228 (3d Cir. 2008); see also Briscoe, 538
F.3d at 263. (“Generally, in determining whether a
plaintiff's claim ...