NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY 

________________________________

:

ALBERT H. ROBERTS, :

: Civil Action No. 11-1793 (RMB)

Plaintiff, :

:

 v. : MEMORANDUM OPINION

:

KAREN BALICKI, et al., :

:

Defendants. :

_______________________________________ :

BUMB, District Judge:

This matter is before the Court upon the Court’s sua sponte

review of the docket in this matter. The docket suggests that

Plaintiff: (a) has abandoned this action; and (b) verifies that

Plaintiff willfully elected not to respond to this Court’s order

to show cause. See Docket Entry No. 113.

This matter was commenced almost three years ago when, on

March 17, 2011, Plaintiff executed a civil complaint

(“Complaint”) challenging the events that had taken place on

April 23, 2009, that is, almost five years ago. See Docket Entry

No. 1. The Complaint raised many claims against various

Defendants. See Docket Entry No. 4 (reviewing each Plaintiff’s

claim in detail). Some of these claims were facially deficient

and warranted sua sponte dismissal; others were set forth in such

terms that this Court, out of an abundance of caution, found it

appropriate to direct service. These other claims raised: (a)

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Eighth Amendment denial-of-medical-care challenges against

Defendants Richards and Jilla; (b) Eighth Amendment excessive

force challenges against Defendants Richards, Jilla, Yacovelli,

Hogan, Horan, McCoy, Lago, Gandy and Volov; and (c) Eighth

Amendment challenges asserting verbal harassment by Defendants

King, Sheldon and Kenlowe. See Docket Entry No. 4; see also

Docket Entry No. 113 at 1. The Court, therefore, directed the

U.S. Marshal to serve summonses upon the aforesaid Defendants. 

See Docket Entry No. 5.

The summonses returned executed as to Defendants Gandy,

Horan, Lago, McCoy, Rogan, Yacovelli and Volov (collectively,

“Served Defendants”). See Docket Entry No. 113 at 1-2. After a

year and a half of litigation, the Served Defendants moved for

summary judgment. That motion was granted, and Plaintiff’s

claims against the Served Defendants were dismissed as not

exhausted administratively. See Docket Entries Nos. 111 and 112. 

A different fate, however, awaited Plaintiff’s claims

against Defendants King, Sheldon, Jilla, Richards and Kenlowe

(collectively, “No-Jurisdiction Defendants”). The summonses

issued as to Defendants King, Sheldon, Jilla and Richards were

returned unexecuted, while the summons issued as to Defendant

Kenlowe produced no record of service. See Docket Entry No. 113

at 2 (detailing the same). This Court, therefore, directed reservice upon Defendant Kenlowe; that re-service verified this

2

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Defendant could not have been served on the basis of the

information provided by Plaintiff. 

The Court also directed Plaintiff to show cause as to why

his claims against the No-Jurisdiction Defendants should not have

been dismissed for failure to prosecute. See Docket Entries Nos.

113 to 115. More than six months passed since the Court’s

issuance of that order to show cause; however, no response was

received from Plaintiff. See generally, Docket.

Under Rule 41(b) of the Federal Rules of Civil Procedure,

“[i]f the plaintiff fails to prosecute or to comply with these

rules or a court order, a defendant may move to dismiss the

action or any claim against it.” Fed. R. Civ. P. 41(b). Also,

district courts have the inherent power to dismiss, sua sponte,

an action that evinces a litigant’s failure to prosecute. See

Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).1 The Court of

Appeals has identified six factors a district court should

consider when contemplating a dismissal for failure to prosecute:

1

 Because of the severity of a dismissal sanction, district

courts are obligated to provide the litigant with an opportunity

to explain his reasons for failing to prosecute the action or

comply with court orders prior to dismissing his case sua sponte. 

See Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008); but see

Reshard v. Lankenau Hosp., 256 F. App’x 506, 507 (3d Cir. 2007)

(when circumstances make such action appropriate, “‘a District

Court may dismiss a complaint for failure to prosecute even

without affording notice of its intention to do so or providing

an adversary hearing before acting’”) (quoting Link v. Wabash

R.R. Co., 370 U.S. 626, 633 (1962)).

3

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(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.

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.

1984) (emphasis removed).2

Here, the balance of Poulis factors compels this Court to

dismiss Plaintiff’s claims against the No-Jurisdiction Defendants

since: (a) Plaintiff is personally responsible for identifying

the No-Jurisdiction Defendants in a fashion sufficient for the

U.S. Marshal to execute service; (b) since January 2012, i.e.,

for two years, Plaintiff had notice that service could not have

been executed on the No-Jurisdiction Defendants, and he was

explained the shortcomings he had to cure; (c) Plaintiff did not

cure these shortcomings; (d) Plaintiff did not respond to this

Court’s order to show cause for six months; (e) this Court cannot

proceed with litigation of this matter since the Court lacks in

personam jurisdiction over the No-Jurisdiction Defendants; and

(f) any future litigation against the No-Jurisdiction Defendants

2 No single factor is dispositive, and “[e]ach factor need

not be satisfied for the [district] court to dismiss a claim.” 

Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). 

However, the factors “should be weighed by the district courts in

order to assure that the ‘extreme’ sanction of dismissal . . . is

reserved for the instances in which it is justly merited.” 

Poulis, 747 F.2d at 870.

4

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would be highly prejudicial because five years have passed since

the events Plaintiff asserted, but the No-Jurisdiction Defendants

never had a notice that they might be hailed to the court to

litigate these events, their recollections might have faded, and

the evidence upon which the No-Jurisdiction Defendants might have

relied could be destroyed by the prison in an ordinary course of

business, without any notice to the No-Jurisdiction Defendants. 

Moreover, the meritoriousness of Plaintiff’s claims against

the No-Jurisdiction Defendants is doubtful at best. Plaintiff’s

harassment claims against King, Sheldon and Kenlowe appear, at a

closer review, facially meritless, since Plaintiff limited his

allegations to purely verbal harassment (such as threats or

laughter) not cognizable in a § 1983 review without a showing of

physical violence. See Stepney v. Gilliard, 2005 U.S. Dist.

LEXIS 31889, at *19 (D.N.J. Dec. 8, 2005) (“Verbal harassment or

profanity alone . . . no matter how inappropriate,

unprofessional, or reprehensible it might seem, does not

constitute the violation of any federally protected right and

therefore is not actionable under [Section] 1983”) (quoting

Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N. Y. 1998)); see

also Robinson v. Taylor, 204 F. App’x 155, 156 (3d Cir. 2006)

(“It is well settled that verbal harassment of a prisoner,

although deplorable, does not violate the Eighth Amendment”). 

5

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In addition, Plaintiff’s excessive force claims against

Defendants Richards and Jilla are likely to be subject to

dismissal on the failure to exhaust grounds (that served as the

basis for this Court’s grant of summary judgment to the Served

Defendants). This is so because Plaintiff’s excessive force

claims against Defendants Richards and Jilla were based on the

events he alleged with regard to the Served Defendants, and the

likelihood that Plaintiff properly exhausted his claims against

Defendants Richards and Jilla (while not exhausting his claims

against the Served Defendants) appears slim. Therefore, under

Poulis, the Court finds itself constrained to dismiss Plaintiff’s

claims against the No-Jurisdiction Defendants.3

An appropriate Order accompanies this Memorandum Opinion.4

 

s/Renée Marie Bumb 

RENÉE MARIE BUMB 

United States District Judge

3 The Court notes the presence of Plaintiff’s Eighth

Amendment denial-of-medical-care claims against Defendants

Richards and Jilla. This line of claim is the sole reason for

the Court’s concern in this matter. However, this sole concern

cannot affect the outcome of the Court’s Poulis analysis in light

of other Poulis considerations applicable here. 

4 The Court, mindful of the severity of the sanction

imposed here, will retain temporary jurisdiction over this matter

for thirty days solely out of an abundance of caution: in order

to ensure that Plaintiff has one final opportunity to respond to

the Court’s order to show cause (docketed in this matter as

Docket Entry No. 113) and to explain the reasons for Plaintiff’s

more-than-half-a-year procrastination with filing such response.

6

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Dated: 

7

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