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Harris v. Holmes

United States District Court, D. New Jersey

April 10, 2019

GARY HARRIS, Plaintiff,
v.
CHRISTOPHER HOLMES, et al., Defendants.

          APPEARANCES: Gary Harris, No. 283029 South Woods State Prison Plaintiff pro se

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Plaintiff, Gary Harris, appearing pro se, is in the custody of the New Jersey Department of Corrections (“NJDOC”) and currently incarcerated at South Woods State Prison (“SWSP”) in Bridgeton, New Jersey. Plaintiff claims that Defendants have violated his rights under the First and Fourteenth Amendments of the U.S. Constitution by not providing him with hot meals and adequate food during Ramadan, failing to accommodate sufficient prayer time and provide prayer oil, preventing him from wearing religious attire, and harassing him during 2012 and 2013.

         Presently before the Court is Plaintiff's request to reinstate Defendants Farsi, Lanoza, Bolden, and Easely, who were previously dismissed for lack of service and Plaintiff's response to why Defendants Marcucci, Moyer, Ramano, Selby, and Yusef should not be dismissed for failure to prosecute. See ECF Nos. 101, 102. For the reasons that follow, the Court's prior order dismissing Defendants Farsi, Lanoza, Bolden, and Easely will stand and the Court will dismiss Defendants Marcucci, Moyer, Ramano, Selby, and Yusef for failure to prosecute.

         I. Factual Background

         Plaintiff Gary Harris commenced this action by filing a Complaint in which he asserts claims pursuant to 42 U.S.C. § 1983 for (1) violation of the First Amendment's Free Exercise Clause; and (2) denial of Equal Protection in violation of the Fourteenth Amendment against Defendants Hicks, Holmes, Lanigan, Norris and Silva as well as Defendants Mark Farsi, Greg Lanoza, Mack Selby, Mark Romano, John Marcucci, Dr. Yusef, Reverend Moyer, Kevin Bolden, Easely, and John Does 1-10. ECF No. 1, ¶¶ 3-17, 33-36. On March 31, 2015, the Court screened the Complaint as required by 28 U.S.C. § 1915(e)(2)(B) and determined that the claims should proceed. ECF No. 6. The Court then ordered the Clerk of Court to file the Complaint and issue the summonses. ECF No. 6. Plaintiff filled out the United States Marshal (“USM”) 285 forms and returned them for service on April 22, 2015. See ECF No. 8.

         Defendants Holmes, Hicks, Lanigan, Norris, and Silva were served on August 24, 2015 (the “Appearing Defendants”). See ECF No. 10. Those defendants appeared in the litigation and were represented by attorneys from the Office of the Attorney General of New Jersey. See, e.g., ECF Nos. 12, 20, 20-1. After years of litigation, including motions practice, discovery, and settlement attempts, the Appearing Defendants moved for summary judgment, which was entered in their favor on all claims by opinion and order dated January 23, 2019. See ECF Nos. 99, 100.

         Defendants Marcucci, Moyer, Ramano, Selby, and Yusef (the “Served Defendants”) were all served by the U.S. Marshals Service on September 28, 2015 at 11:00 a.m., with Linda Linen receiving the summonses on their behalf. See ECF No. 19. A review of the docket shows that these defendants have never appeared or participated in the action. The Served Defendants are not and were not represented by the Office of the Attorney General of New Jersey.[1] See ECF No. 20-1. Plaintiff has never moved for entry of default against the Served Defendants even though their answers were due in October 2015. Because of this failure to prosecute, the Court provided Plaintiff with notice of its intent to dismiss Defendants Selby, Romano, Marcucci, Yusef, and Moyer under Rule 41. See ECF Nos. 99, 100.

         The U.S. Marshals Service was unable to effect service on Defendants Farsi, Lanoza, Bolden, and Easely (the “Unserved Defendants”) with the information provided by Plaintiff. See ECF Nos. 11, 18. For these defendants, Plaintiff provided as service addresses the addresses of South Woods State Prison in Bridgeton, New Jersey, and the New Jersey Department of Corrections in Trenton, New Jersey. See id. As to Defendant Farsi, the summons was returned unexecuted with a note on the USM 285 form that the defendant is “no longer employed at DOC.” ECF No. 11 at 1. As to Defendant Lanoza, the summons was returned unexecuted with a note on the USM 285 form that the defendant is “retired per DOC.” Id. at 4. As to Defendant Bolden, the summons was returned unexecuted with a note on the USM 285 form that the defendant is “retired per DOC.” Id. at 7. As to Defendant Easely, the summons was returned unexecuted with a note on the USM 285 form that the defendant “no longer works at SWSP.” ECF No. 18 at 1. After these summonses were returned unexecuted, a review of the docket shows that Plaintiff has never attempted to effectuate service on them, updated the USM 285 forms with correct addresses, or requested the Court's assistance in ensuring that they are served or ascertaining their addresses for service. In the opinion and order granting summary judgment in favor of the appearing defendants, the Court dismissed without prejudice Defendants Farsi, Lanoza, Bolden, and Easely because Plaintiff had failed to serve them as required. See ECF Nos. 99, 100.

         II. Discussion

         A. Failure to Prosecute Served Defendants

         Defendants Selby, Romano, Marcucci, Yusef, and Moyer were served, see ECF No. 19 (summons returned executed), however they have never appeared or participated in this litigation. Despite being served in or around September 2015 with answers due in or around October 2015, Plaintiff has never moved for a default against them. In response to the Court's notice of its intent to dismiss these defendants for failure to prosecute, Plaintiff states that he believed that the Served Defendants were represented by the New Jersey Attorney General's Office like the Appearing Defendants. See ECF No. 101 at 3-4.

         A plaintiff fails to prosecute his case when he does not seek a default against a non-responsive defendant. See Park v. Ingersoll-Rand Co., 380 Fed.Appx. 190 (3d Cir. 2010) (affirming district court's sua sponte dismissal for failure to prosecute when plaintiff did not seek default against non-responsive defendants). When a plaintiff fails to prosecute his or her case, the court may sua sponte dismiss the action pursuant to Federal Rule of Civil Procedure 41(b). See Link v. Wabash Railroad Co., 370 U.S. 626, 629 (1962); Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341 (3d Cir. 1982) (“The rule does not explicitly provide for sua sponte dismissals by the court, but we believed that it is broad enough to authorize such dismissals on the same basis as it authorizes dismissals upon motion of the defendant.”). The Supreme Court of the United States explained in Link that,

The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue delays in disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered ...

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