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Grant v. Delarosa

United States District Court, D. New Jersey

July 3, 2019

PHILLIP GRANT, Plaintiff,
v.
S.C.O. DELAROSA, et al., Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on this Court's April 12, 2019 Order to Show Cause why Plaintiff's Complaint should not be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41. Order to Show Cause, April 12, 2019, D.E. 62. Plaintiff failed to file a response to the Order to Show Cause by April 30, 2019. Pursuant to Federal Rule of Civil Procedure 78, the Undersigned did not hear oral argument and has considered this matter on the papers. For the reasons set forth below, the Undersigned respectfully recommends that the District Court dismiss Plaintiff's Complaint with prejudice.

         I. Background

         On March 13, 2014, Plaintiff filed a Complaint against Defendants S.C.O. Delarosa, Sgt. Enzo, S.C.O. Williams, and S.C.O. Canionl alleging that he was physically assaulted by S.C.O. Delarosa while incarcerated at East Jersey State Prison. Compl., March 13, 2014, D.E. 1. Plaintiff alleges that on July 30, 2013, he “was assaulted by unknown officers at Bayside State Prison after he refused to submit a pat search.” See Order, Oct. 21, 2014, D.E. 5, at ¶ 4 (citing Compl., March 13, 2014, D.E. 1, at ¶¶ 1, 3). Plaintiff further alleges that on October 29, 2013, he was “assaulted by unknown officers at Northern State Prison.” Id. (citing Compl., March 13, 2014, D.E. 1, at ¶ 3). Plaintiff, however, “[did] not provide any further facts about [the] three incidents.” Order, Oct. 21, 2014, D.E. 5, at ¶ 5.

         Plaintiff's Complaint further contained “unrelated allegations against disparate defendants that [were] not properly joined in a single complaint under Federal Rules of Civil Procedure 18 and 20.” Id. at ¶ 6. Accordingly, on October 21, 2014, the District Court severed “this case into three separate actions[]” and stated that “the instant action will consist of the claim for excessive force against Defendant Delarosa . . .” Id. at ¶ 11. The District Court administratively terminated each action pending Plaintiff submitting proposed amended complaints asserting facts regarding the alleged incidents. Order, Oct. 21, 2014, D.E. 5, at p. 6.

         On September 3, 2015, the District Court directed the Clerk of the Court to file Plaintiff's Amended Complaint that was submitted on November 18, 2014, [1] thereby reinstating this matter (Civil Action Number 14-3358). Order, Sept. 3, 2015, D.E. 12.

         Between September 3, 2015, and September 26, 2017, Plaintiff applied for pro bono counsel, and his application was denied. See In Forma Pauperis Application, Sept. 28, 2015, D.E. 16; Order, Oct. 20, 2015, D.E. 18. Plaintiff moved for reconsideration and, one month later, filed a motion to amend his reconsideration motion. See Motion for Reconsideration, Nov. 17, 2015, D.E. 22; Motion to Amend Reconsideration Motion, Dec. 29, 2015, D.E. 32. The Court granted his motion to amend his reconsideration motion and considered both the amended and original motion for reconsideration. Letter Opinion and Order, Jan. 5, 2016, D.E. 35, at 2. However, the Court denied the motion for reconsideration. Id. Plaintiff also filed a motion to amend the complaint, which the Court denied. Pl. Mot. to Amend, Dec. 29, 2015, D.E. 30; Order, Feb. 4, 2019, D.E. 39.[2]

         On September 26, 2017, the District Court issued a Notice of Call for Dismissal Pursuant to Local Civil Rule 41.1(a). Not. of Call for Dismissal, D.E. 49. On October 25, 2017, the District Court dismissed the matter without prejudice. Order, Oct. 25, 2017, D.E. 50.

         On April 23, 2018, Plaintiff filed a motion to reopen the case, which the District Court granted on October 17, 2018. Order, Oct. 17, 2018, D.E. 58. On January 22, 2019, Plaintiff filed another Notice of Change of Address, updating his address to 600 Broad Street, Newark, New Jersey, 07012. Notice of Change of Address, Jan. 22, 2019, D.E. 59.

         On March 14, 2019, Defendants served Interrogatories and a Notice to Produce on Plaintiff to the Broad Street, Newark, New Jersey address. Defs. Status Report, Apr. 8, 2019, D.E. 61. There is no indication that these discovery demands were undelivered. By letter dated April 8, 2019, the Defense informed the Court that Plaintiff had not responded to the discovery requests. Id. There is no indication that Plaintiff ever subsequently answered the discovery requests.

         The matter was scheduled for an in-person scheduling conference on April 11, 2019, and the parties were required to submit a status report to the Court by April 8, 2019. Order, Mar. 5, 2019, D.E. 60. There is no indication that Plaintiff was unaware of this conference or the Court's directive to file a status report. Plaintiff, however, failed to file a status report by April 8, 2019, and failed to appear for the in-person scheduling conference on April 11, 2019.

         Accordingly, this Court entered an Order to Show Cause on April 12, 2019, directing Plaintiff to show cause in writing no later than April 30, 2019, why his claims should not be dismissed pursuant to Federal Rule of Civil Procedure 41. Order to Show Cause, April 12, 2019, D.E. 62. Defense counsel was directed to send a copy of the Court's April 12, 2019 Order to Plaintiff “at any and all mailing addresses and via email address that Defense counsel has for Plaintiff.” Id. Defense counsel was further directed to “file a certification attesting to completion of same[] on or before April 18, 2019.” Id.

         Although Defense counsel did not file the requisite certification, Plaintiff contacted this Court via telephone on or about May 15, 2019, and advised that he intended to respond to the Court's April 12, 2019 Order to Show Cause. But, as of the date of this Report and Recommendation, Plaintiff has failed to show cause as to why the matter should not be dismissed, or otherwise contact the Court.

         II. ...


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