United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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,  thereby reinstating this
matter (Civil Action Number 14-3358). Order, Sept. 3, 2015,
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.
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.
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.
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.
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.
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.
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.