United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge
or about December 21, 2017, Plaintiff Haneef Taylor, who at
the time he filed his complaint was a pre-trial detainee
confined in the Essex County Correctional Facility, filed in
this Court a complaint in which he sought to bring claims
against several defendants related to the jail's alleged
failure to provide him a diet in accord with his diagnosed
medical needs pursuant to 42 U.S.C. § 1983. (ECF No. 1).
March 3, 2018, this Court entered an order which screened
Plaintiff's complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) and permitted it to proceed against Defendants
Dr. Rizvi, Nurse Nicole, and a John Doe Kitchen Dietician
only. (ECF No. 5). Plaintiff's remaining claims were
Plaintiff was thereafter provided with the forms he needed to
fill out in order to have the U.S. Marshal's Office serve
his complaint, which he returned to the Court on March 26,
2018. (ECF Nos. 6-7). The Marshal's Office thereafter
served the complaint on Defendants Rizvi and Nicole. (ECF No.
11). The summons as to the John Doe Defendant was returned
unexecuted. (ECF No. 12).
May 15, 2018, Defendants Rizvi and Nicole filed an answer to
the complaint. (ECF No. 9). Defendants thereafter filed a
motion to compel the deposition of Plaintiff on June 5, 2018,
which Magistrate Judge Wettre granted on June 6, 2018. (ECF
clerk's office thereafter attempted to serve a copy of
that order upon Petitioner by mail. (See ECF No.
15). That mailing, however, was returned to the Clerk of
Court as undeliverable. (Id.). The envelope which
was returned to the Clerk specifically states that Plaintiff
was moved to “St[ate] prison” on
Plaintiff has failed to update the Court as to his change of
address, which apparently occurred on May 1, 2018, and has
not filed any documents with the Court since late March 2018.
(ECF Docket Sheet).
August 8, 2018, Defendants Rizvi and Nicole filed with the
Court a motion seeking the dismissal of Plaintiff's
complaint for failure to prosecute and failure to update his
address pursuant to Federal Rule of Civil Procedure 41(b) and
Local Civil Rule 10.1(a) respectively. (ECF No. 16). The
documents Defendants have submitted shows that several
letters, filings, pleadings, and discovery requests sent to
Plaintiff since May 1, 2018, have also been returned to
Defendants undelivered marked with the same information -
that Plaintiff was moved to state prison on May 1, 2018.
(See Document 3 attached to ECF No. 16 at 1-3;
Documents 5-9 attached to ECF No. 16).
defendant may move to dismiss any action pursuant to Rule
41(b) “[i]f the plaintiff fails to prosecute or to
comply with [the Federal Rules] or a court order.”
Fed.R.Civ.P. 41(b). Dismissal, however, “is a drastic
sanction and should be reserved for those cases where there
is a clear record of delay or contumacious conduct by the
plaintiff.” Poulis v. State Farm Fire & Cas.
Co., 747 F.2d 863, 866 (3d Cir. 1984); see also
Cooper v. Atl. Cnty. Justice Facility, No. 15-575, 2016
WL 155039, at *1-2 (D.N.J. Jan. 12, 2016). Dismissal may also
be warranted, however, where a defendant fails to prosecute
his claims, see Harris v. City of Philadelphia, 47
F.3d 1311, 1330 (3d Cir. 1995), which includes not only
affirmative delaying of a case but also the failure of a
party to comply with court orders or discovery requests.
See Adams v. Trustees of the N.J. Brewery Employees'
Pension Tr. Fund, 29 F.3d 863, 875 (3d Cir. 1994). In
determining whether dismissal of an action is warranted,
courts look to six factors: (1) the extent of the non-moving
party's personal responsibility, (2) the prejudice to the
moving party, (3) whether there is a history of dilatoriness,
(4) whether there has been bad faith or other willful conduct
by the nonmoving party, the availability of alternative
sanctions, and (6) the merit of the underlying claims.
Poulis 747, F.2d at 868; Cooper, 2016 WL
155039 at *1-2. “Not all factors need be met for a
district court to find dismissal is warranted.”
Cooper, 2016 WL 155039 at *2 (quoting Hicks v.
Feeney, 850 F.2d 152, 156 (3d Cir. 1988)).
this matter, Plaintiff has not only failed to comply with the
discovery requests and letters of Defendants, but also has
failed to update the Court as to his current address.
Pursuant to Local Civil Rule 10.1(a), unrepresented parties,
including incarcerated Plaintiffs, have a duty to keep the
Court and opposing parties apprised of their current mailing
address, Cooper, 2016 WL 155039 at *2, and it
“is logical to hold a pro se plaintiff personally
responsible for delays in his case” arising out of his
failure to perform actions required of him. Briscoe v.
Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008). Because
Plaintiff has failed to update either the Court or Defendants
as to his address as required by the local rules, the Court
concludes that Plaintiff is personally responsible for the
current multi-month delay in this matter in so much as he has
failed to provide an updated address more than four months
after he was moved to state prison. Id. The first
Poulis factor thus weighs in favor of dismissing
is also clear that Defendants have been prejudiced in this
matter insomuch as Plaintiff has failed to comply with their
discovery requests and other attempts to defend this matter.
Because the delay in this matter has been at least four
months, this Court finds that the second Poulis
factor weighs in favor of sanctioning Plaintiff, though less
so than the first. The Third factor also weighs slightly in
favor of sanctions up to and including dismissal as
Plaintiff's failure to update the Court as to his address
or otherwise respond is at least somewhat indicative of
dilatory conduct, though the Court does not find this factor
to have much weight in light of the limited history of this
Both the fourth and sixth Poulis factors, however,
weigh against sanctions insomuch as there is no clear
evidence of bad faith or willful misconduct, and
Plaintiff's current claims were of at least sufficient
merit to survive screening. See Poulis 747 F.2d at
Turning to the final factor, the consideration of alternative
sanctions, this Court finds that as Plaintiff is an indigent
pro se litigant, neither the imposition of fines nor
costs to be appropriate alternative sanctions in this matter.
See, e.g., Briscoe, 858 F.3d at 262-63 (fines and
fees inappropriate sanctions in matter involving pro se
plaintiff proceeding in forma pauperis). As such,
the Court finds only two available sanctions - dismissal of
Plaintiff's complaint either with or without prejudice.
Id. As Plaintiff's failing amounts to his own
delay in updating the Court and counsel as to his address and
his failure to otherwise pursue this matter, this Court finds
that dismissal with prejudice too harsh a sanction to impose
here. Because no other applicable alternative is readily
available, and as this Court finds ...