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Jacobs v. Keegan

United States District Court, D. New Jersey

December 10, 2018

TYREEK J. JACOBS, Plaintiff,
v.
PO ROBERT KEEGAN and PATERSON POLICE DEPARTMENT, Defendants.

          REPORT & RECOMMENDATION

          HON. LEDA DUNN WETTRE UNITED STATES MAGISTRATE JUDGE.

         This matter having been opened by the Court sua sponte based on plaintiffs failure to comply with this Court's orders and prosecute his case; and plaintiff having failed to respond to the order to show cause issued by this Court on November 6, 2018; and for good cause shown; it is respectfully recommended that plaintiffs case be dismissed without prejudice.

         BACKGROUND

         On June 1, 2018, pro se plaintiff Tyreek Jacobs filed a complaint alleging that he suffered physical injuries after Officer Keegan and other officers of the Paterson Police Department assaulted him in the course of a May 2, 2018 arrest. (ECF No. 1). Jacobs was detained at the Passaic County Jail when he filed the complaint, and the Clerk's Office listed the address of the jail as his contact information on the docket. Although he was released shortly thereafter, communications from the Court continued to be sent to the Passaic County Jail; the jail refused to accept the Court's communications and returned them to sender. (ECF Nos. 9, 12, 19). In the meantime, defendant Officer Keegan answered the complaint and the Paterson Police Department moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 17, 20). Plaintiff has not responded to the motion to dismiss.

         In a letter order dated September 25, 2018, the Court set a Rule 16 telephonic initial scheduling conference for November 5, 2018 at 11:30 a.m. (ECF No. 18). After the letter order was returned to sender, the Court reviewed the only communication received from plaintiff to date - a motion for the appointment of pro bono counsel - and found that he had, in fact, provided a home address and telephone number. (ECF No. 7). The Court then updated the docket with plaintiffs contact information and, on or about October 17, 2018, resent a copy of the letter order to plaintiffs home address by U.S. Mail. The second-mailed letter order was not returned to sender.

         Plaintiff failed to appear at the November 5, 2018 telephonic initial scheduling conference. Defense counsel attempted to contact plaintiff by phone immediately prior to the conference; the person who counsel spoke to confirmed that the contact information for plaintiff on the docket is up to date, but stated that plaintiff was not available to participate in the conference. (ECF No. 23). Thus, on November 6, 2018, the Court issued an order to show cause why the case should not be dismissed for failure to prosecute and directed plaintiff to appear in person at a show cause hearing on December 10, 2018 at 10:00 a.m. (ECF No. 24). The Court directed the Clerk to send copies of the order to show cause to plaintiff at the updated address by both certified and regular mail. (Id.). The certified mail return receipt was docketed on December 4, 2018, indicating that the order to show cause was delivered to plaintiff at his only known address. (ECF No. 25).

         Counsel for the Paterson Police Department appeared at the December 10, 2018 show cause hearing, but plaintiff did not. To date, the Court has received no correspondence or other communication from plaintiff explaining his absences.

         ANALYSIS

         The 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). In Poulis v. State Farm Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit identified six factors that courts should balance when deciding whether to impose an involuntary order of dismissal. 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. at 868 (emphasis omitted). No. single Poulis factor is determinative, and dismissal may be 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.Appx. 252, 254-55 (3d Cir. 2007) (per curiam) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). The Court addresses each Poulis factor in turn.

         1. Plaintiffs Personal Responsibility.

         It appears that plaintiff is solely responsible for his failure to comply with the Court's order and to prosecute his case. The Clerk mailed copies of the Court's September 25, 2018 and November 6, 2018 orders to plaintiff at his most recent address. Plaintiff has not updated his contact information with the Court or attempted to contact the Court regarding his case. Therefore, it appears plaintiff is solely responsible for his actions, or lack thereof. See Macon v. City of Asbury Park, Civ. A. No. 07-1413 (MLC), 2008 WL 1882899, at *2 (D.N.J. Apr. 24, 2008) (finding plaintiff "solely responsible" for his failure to contact the Court or counsel or update his contact information despite attempts to reach him through a forwarding address provided after his release from prison).

         2. Prejudice ...


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