United States District Court, D. New Jersey
TYREEK J. JACOBS, Plaintiff,
PO ROBERT KEEGAN and PATERSON POLICE DEPARTMENT, Defendants.
REPORT & RECOMMENDATION
LEDA DUNN WETTRE UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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).
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.
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.
Plaintiffs Personal Responsibility.
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).