BROWN v. SMITH

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

RAYMOND LAMAR BROWN, :

:

Plaintiff, : Civ. No. 20-8463 (NLH) (SAK)

:

v. : OPINION

:

:

RICHARD SMITH, et al, :

:

Defendants. :

______________________________:

APPEARANCES:

Raymond Lamar Brown

48657

Cumberland County Jail

54 W. Broad St.

Bridgeton, NJ 08302

Plaintiff pro se

James R. Birchmeier, Esq.

Birchmeier & Powell LLC

1891 State Highway 50

PO Box 582

Tuckahoe, NJ 08250-0582

Counsel for Defendants Richard Smith and Jody Hirata

Stephen D. Holtzman, Esq.

Jeffrey S. McClain, Esq.

Holtzman McClain & Londar, PC

524 Maple Avenue

Suite 200

Linwood, NJ 08221

Counsel for Defendant Dr. Alan Dias

HILLMAN, District Judge

Defendants Dr. Alan Dias, Jody Hirata, and Richard Smith

(collectively “Defendants”) move to dismiss Plaintiff Raymond

Brown’s complaint for lack of prosecution. ECF Nos. 24, 27.

Plaintiff opposes the motions. ECF No. 28. For the reasons

that follow, the Court will deny the motions to dismiss.

I. BACKGROUND

In July 2020, Plaintiff filed a pro se complaint under 42

U.S.C. § 1983 against Defendants alleging that they created

unconstitutional conditions of confinement and provided

inadequate medical treatment at Cumberland County Jail during

the coronavirus COVID-19 pandemic. ECF No. 1. This Court

permitted the complaint to proceed. ECF No. 3. Defendants

subsequently answered the complaint. ECF Nos. 10, 14.

Dr. Dias states he sent Plaintiff discovery demands on

October 7, 2020. ECF No. 24-2 at 1. Dr. Dias moved for

dismissal of the complaint on December 19, 2020 after Plaintiff

did not respond to discovery requests. ECF No. 15. Defendants

Smith and Hirata also moved to dismiss the complaint based on

Plaintiff’s alleged non-compliance with their discovery demands.

ECF No. 18. Magistrate Judge Donio denied the motions without

prejudice on January 21, 2021.1 ECF No. 22. Judge Donio

1 Magistrate Judge King was later substituted for Judge Donio.

directed Plaintiff to answer the discovery demands within 30

days and noted that “[i]n the event Plaintiff fails to proceed

with discovery or otherwise participate in this litigation,

Defendants may file a renewed motion to dismiss pursuant to

Federal Rule of Civil Procedure 41(b).” Id.

On April 17, 2021, Dr. Dias filed his second motion to

dismiss the complaint for lack of prosecution. ECF No. 24. He

asserts that “[a]s of the date of this motion, the discovery

requests – interrogatories, notice to produce documents,

statement of damages, HIPAA-complaint releases for records –

have not been responded to by Plaintiff Raymond Lamar Brown.”

ECF No. 24-2 at 2. He states this violates Judge Donio’s order

and “Defendant Dias has been and will be unable to complete

factual and expert discovery in this matter.” Id. at 3. The

Court ordered Dr. Dias to supplement his motion to dismiss with

a discussion of the factors set forth in Poulis v. State Farm

Fire & Cas. Co., 747 F.2d 863, 867-68 (3d Cir. 1984). ECF No.

25. After Dr. Dias submitted his supplement, ECF No. 26,

Defendants Hirata and Smith filed their second motion to dismiss

for lack of prosecution, ECF No. 27. They supplemented their

motion with the Poulis factors. ECF No. 31..

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 41(b) provides that

involuntary dismissal is appropriate “[f]or failure of the

plaintiff to prosecute or to comply with these rules or any

order of the court[.]” A district court should consider six

factors when determining whether to dismiss a case under Rule

41(b). Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868

(3d Cir. 1984). The relevant 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. (emphasis omitted). “None of the Poulis factors is alone

dispositive, and it is also true that not all of the factors

need to be satisfied to justify dismissal of a complaint for

lack of prosecution.” Hildebrand v. Allegheny Cty., 923 F.3d

128, 132 (3d Cir. 2019).

III. DISCUSSION

Defendants move to dismiss Plaintiff’s complaint on the

grounds that he has failed to comply with discovery deadlines.

Plaintiff opposes the motion on the grounds that he fell ill

with COVID-19 in the beginning of February 2021. ECF No. 28 at

1. His legal papers were lost when he was taken to quarantine.

Id. He states that he is able to participate in discovery now

that his related class action is completed. Id.2

A. The Extent of the Party’s Personal Responsibility

The ultimate responsibility to make sure the case is

progressing belongs to Plaintiff. See Briscoe v. Klaus, 538

F.3d 252, 258-59 (3d Cir. 2008) (“It is logical to hold a pro se

plaintiff personally responsible for delays in his case because

a pro se plaintiff is solely responsible for the progress of his

case . . . .”). Plaintiff concedes he received the discovery

requests from Defendants and did not respond to them.

Plaintiff’s COVID-19 diagnosis in February 2021 may justify

a brief delay after Judge Donio denied the first set of motions

to dismiss in late January 2021, but it does not explain why he

did not respond after the first set of discovery demands in

October 2020 or why he did not respond upon recovering from

COVID-19. The Court concludes this factor weighs in favor of

dismissal.

B. The Prejudice to the Adversary

The second Poulis factor requires the Court to consider the

prejudice to the adversary. This factor weighs against

dismissal. “[P]rejudice is not limited to ‘irremediable’ or

2 Plaintiff is also participating in a related proposed class

action, Brown v. Warren, No. 20-7907, and is represented by

counsel in that action.

‘irreparable’ harm. It also includes ‘the burden imposed by

impeding a party’s ability to prepare effectively a full and

complete trial strategy.’” Briscoe, 538 F.3d at 259 (quoting

Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)).

Defendants assert they have been harmed by Plaintiff’s

failure to respond promptly in October 2020 because the delay

prevented them from “the ability to adequately investigate,

address and evaluate the allegations set forth in his

Complaint.” ECF No. 31 at 2. See also ECF No. 26 at 3 (stating

Dr. Dias has been prejudiced because he “has been and will be

unable to complete factual discovery (including a deposition of

Plaintiff and potential witnesses) and expert discovery in this

matter.”). However, Defendants fail to note that a significant

amount of discovery has taken place in Plaintiff’s related class

action, Brown v. Warren, No. 20-7907.

This Court took several weeks’ worth of testimony from

Cumberland County Jail employees and detainees as to the

conditions at the facility. Defendants cannot credibly claim

that a moderate delay in discovery has impeded their ability to

assess Plaintiff’s case when he testified under oath and subject

to cross-examination on issues related to this complaint.

Brown, No. 20-7907 (Apr. 21, 2021, ECF No. 35). The Court

considers this factor to weigh against dismissal.

C. History of Dilatoriness

“Extensive or repeated delay or delinquency constitutes a

history of dilatoriness, such as consistent non-response to

interrogatories, or consistent tardiness in complying with court

orders.” Adams v. Trustees of New Jersey Brewery Employees’

Pension Tr. Fund, 29 F.3d 863, 875 (3d Cir. 1994). Plaintiff’s

non-response to Defendants’ discovery requests even after being

instructed to respond by Judge Donio “weighs toward, but does

not mandate, dismissal.” Id.

D. Willfulness or Bad Faith

There are no facts to warrant an inference of bad faith or

willfulness. “Willfulness involves intentional or self-serving

behavior.” Id. Conduct that is “merely negligent or

inadvertent” is not “contumacious,” Briscoe v. Klaus, 538 F.3d

252, 262 (3d Cir. 2008), and the “absence of a good faith effort

to prosecute . . . does not necessarily amount to willfulness or

bad faith as [the Third Circuit] has defined it.” Adams, 29

F.3d at 876. While Plaintiff may be negligent, that is not

enough to meet the Poulis standard of willfulness. The Court

weighs this factor in Plaintiff’s favor.

E. Effectiveness of Other Sanctions

As dismissal with prejudice is an extreme sanction, the

fifth Poulis factor requires the Court to consider the

effectiveness of alternative sanctions. Plaintiff is proceeding

pro se and in forma pauperis, therefore monetary sanctions would

not be an effective alternative. See Briscoe, 538 F.3d at 262

citing Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir.

2002)). However, the Court is not convinced that no effective

lesser sanctions are available.

The Third Circuit has “repeatedly acknowledged that

dismissals with prejudice or defaults are drastic sanctions that

must be a sanction of last, not first, resort.” Hildebrand v.

Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019) (internal

quotation marks and citations omitted). The Court has a variety

of evidentiary sanctions available if Plaintiff’s delay can be

shown to have actually impeded Defendants’ ability to prepare

their defenses. At this relatively early stage of the

litigation, the Court concludes there are alternative sanctions

to dismissal; therefore, this factor strongly weighs against

dismissal.

F. Meritoriousness of the Claims

Finally, the Court considers the meritoriousness of the

Plaintiffs’ claims. “Generally, in determining whether a

plaintiff’s claim is meritorious, we use the standard for a Rule

12(b)(6) motion to dismiss for failure to state a claim.”

Briscoe, 538 F.3d at 263.

This Court screened the complaint under 28 U.S.C. § 1915

and permitted it to proceed. ECF No. 3. Moreover, testimony

and other evidence introduced in the related class action

suggest Plaintiff may have a meritorious claim. While no final

determination has been made in that case concerning the merits

of the equitable relief sought, the Court recently approved a

consent Order appoint a Special Master to help the Court address

serious issues raised concerning the operation of the jail

during the Pandemic. Under such circumstances Plaintiff has

satisfied the “moderate” standard set forth in the case law. See

Adams, 29 F.3d at 876. The Court concludes this factor weighs

against dismissal.

G. Balancing

Two of the Poulis factors weigh in favor of dismissal and

four weigh against dismissal. The number of factors is not

dispositive of the outcome as “there is no ‘magic formula’ or

‘mechanical calculation’” of the factors, Hildebrand, 923 F.3d

at 137, but the Court concludes the factors against dismissal

heavily outweigh those in favor.

The Court gives great weight to the strong preference for

potentially meritorious claims to be decided on their merits and

the fact that alternative sanctions are available. The minimal

prejudice to Defendants and the absence of a showing of bad

faith also strongly support the complaint remaining active.

Plaintiff’s responsibility for the delay is minimal in

comparison, especially considering the relatively short history

of delay.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motions to

dismiss the complaint for lack of prosecution will be denied.

An appropriate Order follows.

Dated: June 11, 2021 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.