United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
HONORABLE TONIANNE J. BONGIOVANNI UNITED STATES MAGISTRATE
matter has been opened by the Court sua sponte based
on Plaintiff Jean Dorval's (“Plaintiff”)
failure to communicate with the Court since March 26, 2018.
For the reasons that follow, it is respectfully recommended
that Plaintiff's claims be DISMISSED WITH PREJUDICE.
and Procedural History
22, 2014, Plaintiff filed a complaint against Abu Ahsan,
Ihuoma Nwachukwu, Donique Ivery, UMDNJ (UCHC), and the New
Jersey Department of Corrections alleging violations of the
Eighth Amendment under cruel and unusual punishment with
deliberate indifference, deprivation of necessary medical
care, medical negligence, and medical malpractice. (Docket
Entry No. 1). After a sua sponte screening of the
complaint, the District Court dismissed the claims against
UMDNJ (UCHC) and the New Jersey Department of Corrections.
(Docket Entry No. 2). On September 14, 2014, an order
scheduling pretrial memorandum submission was entered.
(Docket Entry No. 15). At Plaintiff's request, a revised
scheduling order extending all deadlines by 60 days was
entered on December 4, 2014. (Docket Entry No. 17).
January 12, 2015, Defendants Abu Ahsan, Donique Ivery, and
Ihuoma Nwachukwa (“Defendants”) filed a motion to
dismiss Plaintiff's claims of medical and nursing
malpractice for failure to provide an affidavit of merit
(Docket Entry No. 19) which was denied without prejudice on
August 3, 2015 (Docket Entry No. 30). Defendants then filed a
motion for partial summary judgment on September 11, 2015
(Docket Entry No. 34). In Its April 28, 2016 Opinion denying
Defendant's motion for partial summary judgment without
prejudice, the District Court appointed pro bono
counsel for the limited purpose of assisting Plaintiff in
obtaining the required affidavits of merit in support of his
medical negligence claims against Defendants and gave
Plaintiff sixty days from the date that pro bono
counsel was appointed to file the affidavits of merit.
(Docket Entry No. 39). Pro bono counsel was
appointed on August 29, 2016. (Docket Entry No. 41).
Plaintiff filed a motion for an extension of time to file the
affidavits of merit on October 25, 2016 which was denied on
January 30, 2017. (Docket Entry No. 46). On February 8, 2017,
Pro bono counsel advised that he was unable to
obtain Affidavits of Merit to support Plaintiff's
negligence claim. (Docket Entry No. 49). Pro bono
counsel's request to therefore be relieved as counsel was
Defendants then filed two motions to dismiss (Docket Entry
Nos. 52 and 57). Those motions were denied without prejudice
(Docket Entry Nos. 56 and 62). Defendants filed another
motion for partial summary judgment on December 19, 2017.
(Docket Entry No. 63). On February 15, 2018, the District
Court granted Defendants' summary judgment motion and
dismissed Plaintiff's medical negligence claims. (Docket
Entry No. 67).
amended scheduling order was entered on March 12, 2018.
(Docket Entry No. 70). Plaintiff requested an extension of
time to respond to Defendants' discovery demands. (Docket
Entry No.71). The Court granted Plaintiff's request
giving him until May 4, 2018 to respond to Defendants'
discovery demands. (Docket Entry No. 73). Additionally, the
parties were reminded that all discovery was to be conducted
by July 12, 2018. A status update regarding discovery was to
be submitted by June 12, 2018. Id.
4, 2018, the Court was advised by Defendants that Plaintiff
was released from East Jersey State Prison some time in the
prior month. Defendants also stated that they have not been
advised of Plaintiff's current contact information.
(Docket Entry No. 75). On June 6, 2018, mail that was sent to
Plaintiff from the Court was returned as undeliverable and
stamped “Addressee Not at East Jersey State
Prison”. (Docket Entry No. 76). Plaintiff has not been
in contact with this Court since March 26, 2018. (Docket
Entry No. 71).
Federal Rules of Civil Procedure authorize courts to impose
sanctions for failure to provide discovery, obey court orders
and/or prosecute a case. See Fed.R.Civ.P. 37(b)(2),
such failures have occurred, dismissal may be an appropriate
penalty. Id. Generally, in determining whether to
impose an involuntary order of dismissal with prejudice, the
Court considers the factors set forth in Poulis v. State
Farm Casualty Co., 747 F.2d, 863, 868 (3d Cir. 1984).
These factors include:
(1) The extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by the
plaintiff's conduct; (3) the 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.
Id. 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). If a court finds dismissal
appropriate under Poulis, it may dismiss an action
sua sponte, pursuant to its inherent powers and
Federal Rule of Civil Procedure 41(b). See Iseley v.
Bitner, 216 Fed App'x 252, 254-55 (3d Cir. 2007)
(citing Link v. Wabash R.R. Co., 370 U.S. 626,
630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)).
Court considers the Poulis factors in determining
whether to recommend the dismissal of Plaintiff's claims
with prejudice. For the reasons that follow, the Court finds
that under the circumstances presented here, the