UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

GOLDA HARRIS :

: Civil Action No. 11-1321 (PGS)

Plaintiff, :

:

v. :

:

NEW JERSEY DEPARTMENT OF : REPORT AND RECOMMENDATION

CORRECTIONS, et al., :

:

Defendants. :

___________________________________ :

ARPERT, U.S.M.J.

This matter comes before the Court on the Motion of Defendant New Jersey Department 

of Corrections (“NJDOC”) to Dismiss the Complaint for Failure to Provide Discovery Pursuant 

to FED. R. CIV. P. 37 [dkt. no. 40]. Plaintiff Golda Harris has opposed the Motion [dkt. no. 43]. 

This matter was referred by U.S. District Judge Peter G. Sheridan for a Report and 

Recommendation pursuant to FED. R. CIV. P. 72 and L. CIV. R. 72.1. The Court has carefully 

considered the Parties’ submissions. For the reasons set forth on the record and below, the Court 

recommends that Defendant’s Motion be GRANTED.

I. INTRODUCTION

The facts of this case are well known to the Parties and the Court and need not be recited 

here at length. Briefly, Golda Harris, an inmate in the custody of the NJDOC, filed the present 

action on March 9, 2011, alleging disability discrimination. See Pl.’s Compl., dkt. no. 1. On 

March 22, 2012, the Hon. Mary L. Cooper, U.S.D.J., dismissed Harris’ claims against the 

individually named defendants, but permitted Harris to pursue her disability claims against the 

NJDOC. See dkt. no. 3.
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NJDOC served its written discovery requests on Harris on October 18, 2012. See Def.’s 

Brief, dkt. no. 40, at p. 2. After Harris complained of lacking supplies to respond to the requests, 

on December 12, 2012, NJDOC provided a legal pad and two paper envelopes. Id. When 

Harris’ discovery responses remained outstanding for almost two additional months, the Court 

conducted a telephone conference with the parties on February 7, 2013. See dkt. no. 17. During

the conference, Harris again claimed she was being denied access to legal materials. Id. An 

investigation by DAG Greene determined that this was not the case. See Def.’s Brief, dkt. no. 

40, at p. 3. On February 20, 2013, the Court entered an Order directing Harris to respond to 

NJDOC’s discovery requests by March 11, 2013. See dkt. no. 20. 

On May 16, 2013, the Court conducted a status conference to address, among other 

things, Harris’ outstanding discovery obligations. See dkt. no. 32. Again, Harris asserted she 

was being denied legal materials, this time because she was housed in administrative 

segregation. See Def.’s Brief, dkt. no. 40, at p. 4. After an investigation, Steven Johnson, an 

Associate Administrator at the Edna Mahan Correctional Facility, determined that inmates 

housed in administrative segregation have access to legal materials, and that Harris had been in 

administrative segregation from December 31, 2012 through April 1, 2013. See dkt. no. 33. 

Mr. Johnson also discovered that since April 5, 2013, Harris has been transferred to and 

from the Constant Watch Observation Calls Unit (CWOC), the Stabilization United (SU), and 

administrative segregation. Id. Inmates in the CWOC and SU do not have access to legal 

materials. Id. After learning of Harris’ status, NJDOC submitted a letter to the Court requesting 

that the Court direct Harris to comply with her discovery obligations within 10 days of her return 

to administrative segregation. Id. The Court entered this Order on May 23, 2013. See dkt. no. 

34. On June 7, 2013, Harris was returned to administrative segregation and was housed there 
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until Defendants filed the present motion. See Def.’s Brief, dkt. no. 40, at p. 5. To the Court’s 

knowledge, Harris still has not responded to NJDOC’s discovery requests. NJDOC now moves 

to dismiss Plaintiff’s Complaint for failure to provide discovery. 

II. LEGAL STANDARD

In determining whether to dismiss a Complaint for failure to provide discovery, trial 

courts must weigh six factors: “(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 and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). The Poulis factors apply in 

cases submitted by pro se litigants. See, e.g., Baratta v. County of Ocean, 2013 WL 2658974

(D.N.J. June 11, 2013).

III. DISCUSSION 

A. The Poulis Factors Weigh in Favor of Dismissal

After considering the Parties’ submissions, the Court finds that the Poulis factors weigh

in favor of dismissing the Complaint. The Court will consider each factor in turn.

1. Personal Responsibility

As an initial matter, the Court finds that Harris is personally responsible for her failure to 

provide discovery. Harris’ primary defense is that she did not have access to legal materials, and 

thus was unable to respond to NJDOC’s discovery requests. See Pl.’s Opp. Brief, dkt. no. 43, at 

p. 21. The Court finds this excuse meritless. NJDOC served its discovery requests on October 

18, 2012, and provided Harris with legal supplies to answer those requests on December 12, 
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2012. See Def.’s Brief, dkt. no. 40, at p. 2. Moreover, from December 31, 2012, through April 

1, 2013, and from June 5, 2013 through the date of this Motion, Harris was housed in 

administrative segregation and had access to legal materials there as well. See dkt. no. 33. The 

Court has conducted numerous conferences addressing this issue and has instructed 

investigations concerning Harris’ repeated claims of lacking legal supplies. See Def.’s Brief, at 

pp. 3-5; see also dkt nos. 17, 32. In addition, the Court has issued several Orders directing Harris 

to respond to discovery. See dkt. nos. 20, 34. Harris’ failure to do so lies solely with her. 

2. Prejudice to Adversary

In addition, the Court finds that Harris’ failure to provide discovery has prejudiced 

NJDOC. Specifically, Harris’ refusal to provide discovery has prohibited this action from 

moving forward. Thus, NJDOC has been unable to proceed with the discovery process, 

including even a deposition. Harris’ actions have prejudiced NJDOC, and this factor weighs in 

favor of dismissal.

3. History of Dilatoriness

Further, the Court finds that Harris has demonstrated a history of dilatoriness. As an 

initial matter, Harris did not comply with Federal Rule 34’s 30-day timeframe. Thereafter,

Harris ignored two Court Orders, which effectively provided her over 180 days to respond to 

discovery. See dkt. nos. 20, 34. To the Court’s knowledge, Harris still has not responded to 

NJDOC’s discovery requests, which were served over one year ago. Under the circumstances, 

the Court finds that Harris has demonstrated a history of dilatoriness in this action.

4. Willful Conduct or Bad Faith

Moreover, the Court finds that Harris’ actions are, at minimum, willful. Harris has 

continually asserted that she does not have access to paper or legal materials. See Pl.’s Opp. 
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Brief, dkt. no. 43, at p. 21. Yet, in addition to the considerations discussed in connection with 

the first Poulis factor, Harris has written regular and often lengthy submissions to the Court since 

being served with NJDOC’s discovery requests. See, e.g., dkt. nos. 19, 21, 24, 37, 38, 39, 41, 

43, 44, 45, 47, 50, 52. Given Harris’ apparent access to legal materials, and her refusal to 

respond to NJDOC’s outstanding discovery requests, the Court concludes that Harris’ inaction

“is not the result of negligence, but rather constitutes a willful failure to participate in this 

litigation” First Franklin Fin. Corp. v. Rainbow Mortgage Corp., Inc., Civ. 07-5440 JBS/AMD, 

2010 WL 4923341, at *5 (D.N.J. Oct. 19, 2010), report and recommendation adopted, Civ. 07-

5440 JBS-AMD, 2010 WL 4923326 (D.N.J. Nov. 23, 2010). Accordingly, the Court finds that 

Harris has willfully ignored her discovery obligations.

5. Effectiveness of Sanctions other than Dismissal

In this case, the Court finds that no sanction less than dismissal is appropriate. 

Specifically, awarding costs or attorney fees against an indigent plaintiff, such as Harris, would

be of no value. In addition, the Court has no reason to believe that an additional extension of 

Harris’ time to comply with discovery would be productive, given that Harris has already 

ignored several such Orders. See dkt. nos. 20, 34. In short, given Plaintiff’s “lack of 

participation” despite the Court’s Orders and communications, the Court concludes that 

alternative sanctions would not prompt a response from Plaintiff. First Franklin, 2010 WL 

4923341, at *6. 

6. The Merits of the Case

Finally, the merits of Harris’ case are debatable. It is unclear at this time whether Harris 

could potentially discover evidence supporting her disability claims. Yet, even if this factor were 

neutral, dismissal is appropriate. See Martino v. Solaris Health Systems Corp., 2007 WL 
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1959226, *2 (D.N.J. 2007) (finding sixth Poulis factor to be neutral, but dismissing complaint 

because other factors weighed in favor of the movant). In this case, at least five of the six Poulis

factors weigh in favor of NJDOC. Accordingly, it is recommended that the Complaint should be 

dismissed with prejudice.

B. Plaintiff’s Response

Harris’ three primary objections to NJDOC’s motion do not necessitate a contrary result. 

The Court will consider Harris’ arguments in turn.

1. NJDOC’s Discovery

Contrary to Harris’ contentions, NJDOC has satisfied its discovery obligations. NJDOC 

provided over 2000 pages of documents to Harris on May 16, 2013. See Def.’s Brief, dkt. no. 

40, at p. 3. These documents included progress notes, face sheets, inmate remedy forms, 

disciplinary reports, account statements, business remit forms and medical records. See Def.’s 

Reply Brief, dkt. no. 49, at p. 2. Indeed, Harris has not identified any specific deficiency in 

NJDOC’s production. Accordingly, the Court rejects Harris’ argument that NJDOC is deficient 

in providing discovery. 

2. Access to Legal Materials

The Court has already addressed Harris’ assertion that she has not had access to legal 

materials. See, supra, Sec. III.A.1 and III.A.4. In addition to those considerations, the Court 

notes that NJDOC began documenting Harris’ recurrent legal requests in a journal, which covers

the period between July 12, 2013, and August 15, 2013. See Def.’s Reply Brief, dkt. no. 49, at p. 

3. This journal shows that NJDOC processed almost thirty requests for legal materials from 

Harris. Id. Considering (1) Harris’ letters to the Court, (2) her time in administrative segregation 

where she had access to legal materials, (3) the NJDOC’s journal recording her frequent requests 
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for supplies, and (4) NJDOC’s supply of materials to Harris, the Court has no difficulty 

concluding that Harris had ample means to comply with her discovery obligations.

3. Harris Has Not Complied with her Discovery Obligations

Contrary to Harris’ assertions, she has not responded to NJDOC’s discovery requests. 

Harris contends that her pre-trial memorandum and exhibits satisfy her discovery obligations. 

See Pl.’s Opp. Brief, dkt. no. 43, at p. 3. However, these documents are not responsive to

NJDOC’s requests. To the Court’s knowledge, Harris still has not produced documents 

responsive to NJDOC’s Notice to Produce, which was served on Harris over a year ago. 

In sum, the Poulis factors weigh in favor of dismissing the Complaint due to Harris’ 

failure to provide discovery. None of Harris’ counterarguments necessitate a contrary result.

IV. CONCLUSION

For the reasons set forth above, it is respectfully recommended that Defendant’s Motion 

to Dismiss the Complaint for Failure to Comply with Discovery be GRANTED.

L. CIV. R. 72.1 and FED. R. CIV. P. 72 permit objections to this Report and 

Recommendation to be filed within fourteen (14) days after service hereof. Any party may 

respond to another party’s objections within fourteen (14) days after being served with a copy 

thereof. The Clerk of Court is directed to serve the parties with electronic notice upon filing this 

Report and Recommendation.

s/ Douglas E. Arpert 

DOUGLAS E. ARPERT

UNITED STATES MAGISTRATE JUDGE

Dated: November 21, 2013