BROWN v. COHEN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

NICHOLAS BROWN, :

:

Plaintiff, : Civ. No. 17-3436 (NLH) (SAK)

:

v. : OPINION

:

:

:

DR. COHEN, et al, :

:

Defendants. :

______________________________:

APPEARANCES:

Nicholas Brown

4373718

Trenton Rescue Mission

98 Carroll Street

Trenton, NJ 08609

Plaintiff pro se

Stephen D. Holtzman, Esq.

Jeffrey S. McClain, Esq.

Holtzman McClain & Londar, PC

524 Maple Avenue

Suite 200

Linwood, NJ 08221

Counsel for Defendant Dr. Cohen

HILLMAN, District Judge

Defendant Dr. Todd Cohen moves to dismiss Plaintiff Nicolas

Brown’s complaint for lack of prosecution. ECF No. 26.

Plaintiff filed a letter asking the Court to reopen his case,

which the Court construes as opposition to the motion. ECF No.

28. For the reasons that follow, the Court will deny the motion

to dismiss.

In May 2017, Plaintiff filed a pro se complaint under 42

U.S.C. § 1983 against Defendant Dr. Todd Cohen for deliberate

indifference to Plaintiff’s medical needs while he was detained

in the Camden County Jail. ECF No. 1. This Court permitted the

complaint to proceed. ECF No. 6. On August 15, 2018, Plaintiff

submitted an amended complaint. ECF No. 11.

The Court administratively terminated the complaint on

October 17, 2019 after mail sent to Plaintiff at his listed

address was returned as undeliverable. ECF No. 15. On July 7,

2020, Plaintiff wrote to the Court asking for his case to be

reopened. ECF No. 17. The Court reopened the matter and

instructed the Clerk to resend U.S. Marshal Form 285 to

Plaintiff. ECF No. 18. After Plaintiff returned the form, the

U.S. Marshals served Dr. Cohen with the complaint and amended

complaint on December 11, 2020. ECF No. 23. Dr. Cohen filed

his answer on December 22, 2020. ECF No. 24.

Mail addressed to Plaintiff was returned as undeliverable

on January 4, 2021. ECF No. 25. Dr. Cohen filed a motion to

dismiss the case based on lack of prosecution and for

Plaintiff’s failure to update his address. ECF No. 26.

Plaintiff filed a letter with the Court asking for his case to

be reopened1 because he did not have an available mailing address

after his released from jail. ECF No. 28. Plaintiff

subsequently filed an updated address. ECF No. 30.

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).

1 The matter had not been closed after the Court received the

returned mail. See infra note 2.

III. DISCUSSION

A. The Extent of the Party’s Personal Responsibility

In general, it is Plaintiff’s responsibility to make sure

the case is progressing. 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 . .

. .”). However, the Court’s review of the docket indicates that

some of the delays in this action since its 2017 filing do not

appear to be Plaintiff’s fault. The complaint was originally

permitted to proceed on April 16, 2018, ECF No. 6, and summonses

were issued on May 8, 2018, ECF No. 9. It is unclear whether

the complaint was served at the time. Plaintiff submitted his

amended complaint on August 15, 2018. ECF No. 11. These delays

do not appear to have been within Plaintiff’s control.

On October 17, 2019, the Court administratively terminated

the complaint under Local Rule 10.1(a) after mail sent to

Plaintiff was returned. ECF No. 15. This delay may be

attributed to Plaintiff.

Plaintiff wrote to the Court inquiring as to his case

status in July 2020, ECF No. 17, at which time the Court

reopened the case and directed Plaintiff to resubmit U.S.

Marshal Form 285 for service. ECF No. 18. Plaintiff promptly

complied, ECF No. 21, and the U.S. Marshals served the complaint

and amended complaint on Dr. Cohen. ECF No. 23. The Court has

not received any returned mail from Plaintiff that would

indicate further failure to comply with Local Rule 10.1.2

Plaintiff states that he was experiencing homelessness

after his release from Camden County Jail and did not have an

address at which he could receive mail. ECF No. 28. Since the

filing of this motion, Plaintiff has updated his address with

the Court and communicated with Defendant. The Court concludes

this factor is neutral.

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

‘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)).

Dr. Cohen argues he has been prejudiced because

“Plaintiff’s failures make it impossible . . . to conduct

2 On January 4, 2021, the Court received returned mail that had

been addressed to Plaintiff at the Camden County Jail. ECF No.

25. However, the writing on the envelope indicated the mail was

returned not because of an insufficient address but because the

jail requires mail to inmates to be in “white envelopes only.”

Id. The Court takes judicial notice that the envelopes used by

the Clerk’s Office for official business are white.

discovery in a diligent and expeditious manner as required by

L.Civ.R. 26.1.” ECF No. 26-3 at 3. The Court considers this

factor to weigh against dismissal because Plaintiff has updated

his address and is participating in the case. Dr. Cohen remains

free to seek appropriate discovery remedies if Plaintiff does

not comply with his discovery obligations in the future.

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). The Court

finds this factor to be neutral as there is some history of

delay in this case but not all of it can be attributed to

Plaintiff.

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 Dr. Cohen’s ability to defend

himself. 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

Plaintiff’s 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. Plaintiff alleges Dr.

Cohen pulled the wrong tooth in providing Plaintiff dental care.

Such a claim should be heard on its merits. This factor weighs

against dismissal.

G. Balancing

The Court considers two of the Poulis factors to be neutral

in weight and four factors to 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 the neutral factors.

The Court gives great weight to the strong preference for

claims to be decided on their merits and the fact that

alternative sanctions are available. The minimal prejudice to

Dr. Cohen and the absence of a showing of bad faith also

strongly support the complaint remaining active.

It should be noted, however, that while the Court has

determined that the Poulis factors on whole do not warrant

dismissal at time, Defendant’s motion was not frivolous.

Plaintiff is reminded that any further delays in this matter

attributable to Plaintiff, including failures to update his

address, may result in a different balancing of the relevant

Poulis factors in the future.

IV. CONCLUSION

For the reasons set forth above, Defendant’s motion to

dismiss the complaint for lack of prosecution shall be denied.

An appropriate Order follows.

Dated: September 9, 2021 s/ Noel L. Hillman

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