United States District Court, D. New Jersey
APPEARANCES: Gary Harris, No. 283029 South Woods State Prison
Plaintiff pro se
L. HILLMAN, U.S.D.J.
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.
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.
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.
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.
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. 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.
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.
Failure to Prosecute Served 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.
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 ...