I. INTRODUCTION

*1 The Court raises this matter sua sponte to address pro se Plaintiff Gregory I. Ezeani's continued noncompliance with his discovery obligations and refusal to obey court orders. In his own words, he “will not abide by any court order for third deposition as ordered by the [M]agistrate Judge Almonte and [a]ffirmed by the Honorable Judge Brian Martinotti.” ECF No. 151 at 4 (emphasis added); see also ECF No. 149. For the reasons set forth below, the Court respectfully recommends that this action be dismissed with prejudice, pursuant to Rule 37(b) and Rule 41(b) of the Federal Rules of Civil Procedure.[1]

II. BACKGROUND

On March 9, 2021, Plaintiff initiated the present action alleging that he was “infected” with diabetes while incarcerated at the Essex County Correctional Facility (“ECCF”). See Compl., ECF No. 1 ¶ 3. Because Plaintiff is proceeding pro se, the Court liberally construes his Complaint to allege that he received inadequate medical care for his diabetes while detained at the ECCF between May 2019 and March 2020, and that, as warden of the ECCF, Defendant William Anderson was responsible for the medical malpractice. Id.; see also ECF No. 53. On July 21, 2021, Defendant Anderson answered Plaintiff's Complaint and filed a Third-Party Complaint against CFG Health Systems, LLC (“CFG Health”), a contractor that provided medical services at ECCF during Plaintiff's detention. Answer to Compl., ECF No. 6.

On September 23, 2021, the Court entered a Pretrial Scheduling Order, under which fact discovery was to be completed by January 23, 2022. ECF No. 23 ¶ 1. That deadline, however, had to be extended three times so that Defendants could attempt to take Plaintiff's deposition, as well as the depositions of non-parties. See ECF Nos. 51, 65, 146.

The first attempt to take Plaintiff's deposition occurred on December 14, 2021, when CFG Health served upon Plaintiff a notice of deposition to be conducted via video conference, using Zoom. See ECF No. 39–1. Plaintiff refused to appear for the deposition, claiming that he was available only for “paper based [discovery] as [the] court instructed.” ECF No. 39–2; see also ECF No. 40. Plaintiff insisted that he would participate by Zoom only if Defendants paid any costs associated with taking his Zoom deposition, including the provision of a laptop, internet, and electricity costs. ECF No. 40. He claimed that he did not have the funds to participate by Zoom, even though he is “a PHD engineering student at [O]ld [D]ominion [U]niversity and a Doctor of Business Administration Student at [U]niversity of the Cumberland.” ECF No. 43. Alternatively, Plaintiff offered to be available for a “court deposition ... within court premises,” if the Court scheduled one. ECF No. 40.

On December 21, 2021, the Honorable Leda D. Wettre, U.S.M.J. (“Judge Wettre”), ordered Plaintiff to appear for the scheduled Zoom deposition on or before January 12, 2022, without shifting costs to Defendants. ECF No. 42. The Order also outlined that, “[s]hould plaintiff fail to appear for [the] deposition as ordered, defendant and/or third-party defendant may file a motion to compel plaintiff's deposition.” Id. at ¶ 4. Plaintiff appealed Judge Wettre's denial of his request to shift the cost of the Zoom deposition to Defendants. See generally ECF No. 43.

*2 On January 26, 2022, while the appeal was pending before the Honorable Brian R. Martinotti, U.S.D.J. (“Judge Martinotti”),[2] CFG Health informed the Court that Plaintiff appeared for his deposition via telephone on January 12, 2022, but refused to appear on Zoom because he allegedly did not have the funds. ECF No. 49; see also ECF No. 50. During the deposition, Plaintiff also refused to answer questions regarding his employment, symptoms, and injuries. Id. Thereafter, Judge Wettre entered an Amended Scheduling Order, extending the fact discovery deadline from January 23, 2022, to March 31, 2022, and directing Plaintiff to appear for a continued deposition via Zoom on March 8, 2022. ECF No. 51 ¶¶ 1-2.

On March 8, 2022, Plaintiff appeared for a deposition via Zoom, but he refused to answer numerous questions related to Defendants’ defense, including information about his current diabetic symptoms, efforts to control diabetes, health status, eating habits, and diet. See ECF No. 76–4, 68:19-70:12, 74:1-18, 117:2-17, 118:2-23, 120:9-121:17, 140:19-142:8, 164:12-20, 199:8-200:11; ECF No. 76–5, 234:20-24, 236:5-8; ECF No. 76–6, 60:21-61:25, 64:6-65:18, 77:1-25, 84:1-16. For example, when Plaintiff was asked, “what are your current symptoms,” he responded, “I don't discuss how I feel to somebody who's not a doctor ... I have to preserve my medical rights .... I'm not answering about my symptoms. Okay? The judge have [sic] to review my answers and review your questions ....” ECF No. 76–4, 117:8-121:17.

On April 4, 2022, Defendants sought leave to file a motion to dismiss Plaintiff's Complaint for failure to comply with discovery and/or alternative relief barring testimony. ECF No. 63. To give Plaintiff yet another opportunity to comply with discovery, this Court did not grant Defendants leave to file a motion to dismiss, but, rather, allowed them to file a motion for an order to compel discovery. ECF No. 65. On April 21, 2022, and April 22, 2022, Defendants filed a motion to compel deposition testimony under Rule 37(a) of the Federal Rules of Civil Procedure (“Motion to Compel”).[3]

After Defendants filed their Motion to Compel, Plaintiff filed various motions and applications primarily related to discovery.[4] On September 20, 2022, this Court issued a text order requiring the parties to appear for a conference on November 14, 2022, to resolve all pending motions and applications, including Defendants’ Motion to Compel. ECF No. 127. Plaintiff, however, notified the Court that he “permanently refuse[s] to consent to continue with any status conference or schedules by the magistrate court judge because it is unconstitutional, and it violates the plaintiff[’s] constitutional due process to further any status conference or amended schedule without plaintiff[’s] consent to it.” ECF No. 128 at 1.

*3 Thereafter, when this Court confirmed that the conference would proceed as originally planned and would now be conducted in person (ECF No. 133), Plaintiff filed a motion addressed to Judge Martinotti, titled “Motion for Permanent Refusal of Magistrate Judge Court Order.” ECF No. 134. In it, Plaintiff dictated to the Court that he “will not participate in any conference” because the Court was acting beyond its authority. Id. at 1. On November 4, 2022, Judge Martinotti affirmed this Court's Order requiring Plaintiff to appear for an in-person conference on November 14, 2022.[5] ECF Nos. 140, 141. Plaintiff was “directed to comply with [the Undersigned's] orders, including appearing in-person on November 14, 2022.” ECF No. 140 at 8.

On November 6, 2022, just two days after Judge Martinotti's decision, Plaintiff filed a “Motion for rejection of Judge Martinotti Excessive Use of Force to Compel Plaintiff for in person conference.” ECF No. 142. He requested to proceed via Zoom, citing his concern of COVID-19's impact on his health for the first time. Id. On November 9, 2022, this Court issued an order accommodating Plaintiff's request to proceed via Zoom, but noted that his concern about proceeding in person was belied by prior representations made to the Court:

ECF No. 144.

On November 14, 2022, the Court was able to finally hold a hearing with all parties, including Plaintiff, to address seven pending motions (ECF Nos. 72, 76, 109, 110, 112, 118, 119). After the parties were given a full and fair opportunity to be heard, the Court issued an oral opinion on the record as to these motions, followed by an Order on November 16, 2022. See ECF No. 146. Most notably, the Court ordered Plaintiff to appear for a third deposition by December 15, 2022. Id. at ¶¶ 7-8. The Court cautioned Plaintiff, both on the record and separately in the November 16, 2022 Order, that “this is his last opportunity to comply with his discovery obligations.” Id. at ¶ 8 (emphasis added).

Not long thereafter, on November 19, 2022, Plaintiff filed a “[m]otion to [n]otify the court that Plaintiff will not attend any third deposition because it is an organized crime that violates plaintiff[’s] constitutional right.” ECF No. 149 (emphasis added). His refusal to comply with the Court's orders appears to be rooted in his belief that the Undersigned cannot act or rule impartially in this case because of the Undersigned's prior government position as an Assistant United States Attorney. Plaintiff's logic seems to be that the Undersigned has a conflict of interest because he was previously employed by the United States Attorney's Office in New Jersey, which is part of the United States Department of Justice, which controls the Department of Homeland Security, which contracted with the ECCF, which is the facility where he was detained when he allegedly received inadequate medical care for his diabetes.[6] See generally ECF No. 149. Plaintiff also takes issue with Judge Martinotti's denial of his motion to recuse the Undersigned, arguing that His Honor “violated due process right of the plaintiff to refer a recusal complaint for oversight back to the magistrate judge that committed the crime.” Id. at ¶ 8. In light of Plaintiff's conduct, this Court considers sua sponte whether dismissal of this action is appropriate.

III. LEGAL STANDARD

*4 The Federal Rules of Civil Procedure vest this Court with the inherent authority to recommend dismissal of an action sua sponte. See Fed. R. Civ. P. 16(f)(1)(C) (“On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party ... fails to obey a scheduling or other pretrial order.”). This Court's recommendation to the District Court is guided by Rule 37(b) and Rule 41(b) of the Federal Rules of Civil Procedure. Rule 37(b) allows the District Court to dismiss an action for failure to obey a court order compelling discovery under Rule 37(a). Fed. R. Civ. P. 37(b)(2)(A)(v); see also Lee v. Sunrise Sr. Living, Inc., 455 F. App'x 199, 201–02 (3d Cir. 2012) (affirming Rule 37 dismissal due to plaintiff's repeated refusal to appear for a court-ordered deposition). Rule 41(b) similarly permits dismissal of a suit sua sponte for failure to prosecute or based on failure to comply with a court order. Fed. R. Civ. P. 41(b); see also Shields v. Comm'r of Soc. Sec., 474 F. App'x 857, 858 (3d Cir. 2012). Dismissal pursuant to Rule 41(b) operates as an adjudication on the merits, unless the court's order specifies otherwise. Reigle v. Riesh, 635 F. App'x 8, 10 (3d Cir. 2015). When deciding whether the sanction of dismissal is proper, courts typically engage in a balancing analysis of the following six factors:

Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphasis omitted). “None of the Poulis factors is alone dispositive, and ... not all of the factors need to be satisfied to justify dismissal of a complaint for lack of prosecution.” Hildebrand v. Allegheny Cnty., 923 F.3d 128, 131–32 (3d Cir. 2019). Balancing the Poulis factors is unnecessary when a litigant's conduct “makes adjudication of [the] case impossible.” Abulkhair v. New Century Fin. Servs., Inc., 467 F. App'x 151, 153 (3d Cir. 2012) (citing Spain v. Gallegos, 26 F.3d 439, 454–55 (3d Cir.1994)).

IV. DISCUSSION

Plaintiff has circumvented his obligation to meaningfully sit for a deposition and has failed to abide by several court orders. Most notably, on November 16, 2022, this Court entered an Order, pursuant to Rule 37(a), ordering Plaintiff to sit for a third deposition (ECF No. 146). See ECF Nos. 149, 151. Despite guidance from this Court, Plaintiff has made it abundantly clear that he will not comply with any future orders (ECF Nos. 149, 150), thereby making it impossible to adjudicate his case. The Court can end its analysis here without analyzing the Poulis factors. See Abulkhair, 467 F. App'x at 153. But, because the Court recognizes that “dismissal is a drastic sanction,” it considers each of the Poulis factors. 747 F.2d at 866.

This Court first considers the extent of Plaintiff's personal responsibility in refusing to comply with discovery and this Court's orders. Id. at 868. “[I]t 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, whereas a plaintiff represented by counsel relies, at least in part, on his or her attorney.” Vittas v. Brooks Bros, Inc., Grp., No. 14-cv-3617, 2017 WL 6316633, at *2 (D.N.J. Dec. 11, 2017) (citing Briscoe v. Klaus, 538 F.3d 252, 258–59 (3d Cir. 2008)).

Plaintiff is appearing pro se. The record reflects that he has been on notice of his obligations but has nonetheless refused to comply with them; therefore, he is solely responsible for such noncompliance. Defendants attempted to conduct Plaintiff's deposition twice—first on January 12, 2022, and then again on March 8, 2022—both of which had to be Court ordered. See ECF Nos. 42, 49, 50, 76. And this Court has ordered Plaintiff to attend his deposition for a third time—an order which he has made clear he is going to ignore. See generally ECF Nos. 149, 151.

*5 With respect to the first deposition, although Judge Wettre's Order specifically directed Plaintiff to appear via Zoom (ECF No. 42), he refused to do so. Plaintiff appeared by telephone and refused to answer questions regarding his employment, symptoms, and injuries. ECF Nos. 49, 50. Thereafter, Plaintiff was given another opportunity to comply with his discovery obligations and was ordered, again, to sit for a second deposition on March 8, 2022, via Zoom, not telephone. ECF No. 51 ¶ 2.

As recited above, although Plaintiff appeared for a Zoom deposition on March 8, 2022, he refused to answer questions regarding his current diabetic symptoms, efforts to control diabetes, health status, eating habits, and diet. See ECF No. 76–4, 68:19-70:12, 74:1-18, 117:2-17, 118:2-23, 120:9-121:17, 140:19-142:8, 164:12-20, 199:8-200:11; ECF No. 76–5, 234:20-24, 236:5-8; ECF No. 76–6, 60:21-61:25, 64:6-65:18, 77:1-25, 84:1-16. Based on the submissions of the parties and the deposition excerpts provided, Plaintiff's answers were evasive and nonresponsive. For example, when asked, “what are your current symptoms,” Plaintiff responded, “I don't discuss how I feel to somebody who's not a doctor ... I have to preserve my medical rights .... I'm not answering about my symptoms. Okay? The judge have to review my answers and review your questions ....” ECF No. 76–4, 117:8-121:17. As another example, when he was asked about employment and whether he was currently teaching at Essex County College, Plaintiff stated, “I don't discuss that. That's irrelevant.” ECF No. 76–4, 149:14-23.

Plaintiff argues that much of the Defendants’ questions about his employment status, health condition, and diet were “irrelevant,” notwithstanding that the gravamen of his Complaint is that Defendants’ alleged negligence caused his diabetes and that he has suffered an economic harm as a result. See generally Compl., ECF No. 1; see also ECF No. 78 ¶¶ 11-13, ECF No. 79 at 4-10, 12-13, ECF No. 81 at 1, 3-6, 8. Yet, Plaintiff's own deposition testimony evinces that he was aware of the relevance of the questioning at issue. For instance, he acknowledges that the questions aimed at his health conditions are designed to bolster the defense in this case. ECF No. 76–6, 60:21-61:25 (“[Y]ou want to know my health situation for you to build your case. It can't happen.”).

After Defendants’ second attempt at conducting Plaintiff's deposition, this Court held a hearing to determine whether to compel Plaintiff's deposition, pursuant to Rule 37(a). ECF No. 146. During the hearing, this Court explained to Plaintiff that the questions he refused to answer are relevant and central to his claim that he received inadequate medical treatment for his diabetes. This Court ordered Plaintiff to sit for a third deposition and put him on notice, on the record and in a subsequent Order, “that this is his last opportunity to comply with his discovery obligations.”[7] ECF No. 146 (emphasis added). Plaintiff has squandered that opportunity and has made his intentions unequivocal—he “will not honor any third deposition.” ECF No. 149. According to Plaintiff, “any attempt of the court to compel the plaintiff will be dishonored,” and he “will not honor anything that the [Undersigned orders] so [the] court should feel free to make their final decision based on my refusal to abide by any unlawful order that violate the plaintiff[’s] constitutional right.” ECF No. 151 at 4.

*6 Although pro se litigants are entitled to a certain degree of leniency,[8] they are not entitled to blatantly disregard court orders or circumvent their obligations under the Federal Rules of Civil Procedure. That is precisely what Plaintiff has done and continues to do. He is personally responsible for such noncompliance and failure to prosecute his case. Accordingly, the first Poulis factor weighs in favor of dismissal.

The second Poulis factor requires this Court to consider the prejudice to Plaintiff's adversaries, including assessing whether the party's conduct has resulted in “deprivation of information through noncooperation with discovery, and costs expended obtaining court orders to force compliance with discovery.” W. Coast Quartz Corp. v. M.E.C. Tech, Inc., No. 16-cv-2280, 2017 WL 1944197, at *2 (D.N.J. May 9, 2017) (citing Adams v. Tr. of New Jersey Brewery Emps.’ Pension Tr. Fund, 29 F.3d 863, 874 (3d Cir. 1994)). Further, a party may be prejudiced if the adversary's conduct hinders “its ‘ability to prepare effectively a full and complete trial strategy[.]’ ” Chiarulli v. Taylor, No. 08-cv-4400, 2010 WL 1371944, at *3 (D.N.J. Mar. 31, 2010), report and recommendation adopted, No. 08-cv-4400, 2010 WL 1566316 (D.N.J. Apr. 16, 2010) (citing Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)).

Here, the prejudice is obvious. Defendants have been prejudiced not only because of the unnecessary costs they incurred in connection with two depositions and various motions, but also because they cannot evaluate the strengths and weaknesses of their case. Plaintiff's non-responsiveness on issues critical to this case have stalled the Defendants’ ability to defend themselves, effectively bringing this case to a halt. Meanwhile, Defendants run the risk that their witnesses’ memories fade or that witnesses become unavailable. Therefore, the second Poulis factor also weighs in favor of dismissal.

As for the third Poulis factor, this Court finds that Plaintiff has demonstrated a clear history of dilatoriness. Plaintiff's conduct illustrates a pattern of dilatory behavior that can be traced back to January 21, 2022, when he failed to comply with Judge Wettre's December 21, 2021 Order requiring him to appear for a deposition via Zoom. ECF No. 39–1; see also ECF Nos. 49, 50. Because of Plaintiff's evasiveness, Defendants have not been able to take his deposition almost a year later, and he has foreclosed the possibility that a deposition will ever take place. This case cannot linger in perpetuity with the hope that one day Plaintiff might change his mind and agree to provide full answers to deposition questions. Despite the Court's efforts to provide guidance, Plaintiff's persistent refusal to answer questions and now his rejection of this Court's orders demonstrates a history of dilatoriness. The third Poulis factor, too, militates in favor of dismissal. See, e.g., Huertas v. Philadelphia, 139 F. App'x 444, 446 (3d Cir. 2005) (citing Adams, 29 F.3d at 874–75 (finding that dilatory conduct was established when plaintiff failed to appear for depositions after receiving adequate notice and did not pursue any protection from the court)).

*7 In considering the fourth Poulis factor, this Court finds that Plaintiff's conduct is not just willful but also in bad faith for the same reasons that the Court finds that he is personally responsible for his dilatoriness. “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. “A consistent failure to obey orders of the court, ‘at the very least, renders [a party's] actions willful for the purposes of the fourth Poulis factor.’ ” Hunt-Ruble v. Lord, Worrell & Richter, Inc., No. 10-cv-4520, 2012 WL 2340418, at *5 (D.N.J. June 19, 2012). Plaintiff's history of continued noncompliance with this Court's orders is well documented above, culminating with his own declaration that he “will not honor any third deposition” (ECF No. 149 at 1) and that he “is not abiding and will not abide by any court order for third deposition as ordered by the [Undersigned] and Affirmed by the Honorable Judge Brian Martinotti.” ECF No. 151 at 4. Plaintiff “does not agree with any action of the magistrate judge and ... make[s] it clear that any court decision from the magistrate judge is irrelevant.” ECF No. 149 ¶ 10.

Plaintiff is aware of the Court's orders, and he is similarly aware of his discovery obligations, but he still refuses to comply, preventing the case from moving forward. Plaintiff's own conduct and words leave this Court with no choice but to conclude that he has acted both willfully and in bad faith. Therefore, the fourth Poulis factor also calls for dismissal.

Next, this Court considers whether there are alternative sanctions to dismissal. Poulis, 747 F.2d at 868. It finds that there are none. “The Third Circuit has identified a number of alternative sanctions available to a court [other than dismissal], including a warning, a formal reprimand, placing the case at the bottom of the calendar, a fine, the imposition of costs or attorney fees or the preclusion of claims or defenses.” Hayes v. Nestor, No. 09-cv-6092, 2013 WL 5176703, at *5 (D.N.J. Sept. 12, 2013) (internal quotation marks and citation omitted). “Where, as here, a plaintiff is appearing pro se, monetary sanctions, such as fees and costs, are often inappropriate.” Gonzalez v. Town of W. New York, No. 20-cv-1849, 2022 WL 4586479, at *6 (D.N.J. Sept. 29, 2022) (citing Briscoe, 538 F.3d at 263); Emerson v. Thiel College, 269 F.3d 184, 191 (3d Cir. 2002)). Although Plaintiff does not proceed in forma pauperis, he has represented to the Court that he did not have sufficient financial resources to participate by Zoom in the first deposition on January 12, 2022. ECF No. 43 (“I have financial difficulty because I am a PHD engineering student at [O]ld [D]ominion [U]niversity and a Doctor of Business Administration Student at [U]niversity of the Cumberland ... I have invested my funds in paying for tuition, so I have financial challenges at this time .... The decision of [C]ourt not to consider the plaintiff[’s] financial burden does not seem rational because it does not protect the plaintiff[’s] financial wellbeing.”). Given his representations, monetary fines are unlikely to be an effective alternative sanction.

No other form of sanction—other than dismissal—will alter the course of this case. Despite being on notice that this was Plaintiff's last opportunity to comply with his discovery obligations, he has been unequivocal that “any attempt of the court to compel the plaintiff will be dishonored,” and he “will not honor anything that the [Undersigned orders] so [the] court should feel free to make their final decision based on my refusal to abide by any unlawful order that violate the plaintiff[’s] constitutional right.” ECF No. 151 at 4. Given Plaintiff's continued disregard for the discovery process and this Court's prior orders, it would be futile, and prejudicial to Defendants, to order Plaintiff to comply with basic discovery obligations a fourth time. Thus, the fifth Poulis factor favors dismissal.

*8 The sixth Poulis factor calls for an analysis of the merits of the claims. “A claim, or defense will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense.” Poulis, 747 F.2d at 869–70. At this juncture, the Court lacks sufficient information to evaluate the evidence in this case and, therefore, cannot adequately assess the sixth Poulis factor. This, however, is not fatal to the dispositive nature of the Court's recommendation as it is not necessary to find that all factors weigh in favor of dismissal. Emerson, 296 F.3d at 190. As such, the Court will consider this factor neutral. See Hayes, 2013 WL 5176703 at *6 (finding that the sixth Poulis factor was neutral where “the Court [did] not have a sufficient basis upon which to evaluate the meritoriousness of plaintiff's claims” and that no greater analysis of the sixth factor was necessary to dismiss plaintiff's complaint).

After considering and balancing the Poulis factors, this Court finds that dismissal of this case with prejudice is appropriate. See Fed. R. Civ. P. 37(b) and 41(b). The Court acknowledges that dismissal of an action as a sanction is undoubtedly a measure of last resort, one that should not be made lightly. Where, as here, a plaintiff, even one proceeding pro se, blatantly shirks his responsibility to comply with discovery and this Court's orders, he leaves the Court with no other choice but to recommend dismissal of the action. To hold otherwise would undermine the purpose of the Federal Rules of Civil Procedure—“to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

V. CONCLUSION

For the reasons set forth above, this Court respectfully recommends that the District Court dismiss the Complaint against all Defendants in this action with prejudice, pursuant to Rule 37(b) and Rule 41(b) of the Federal Rules of Civil Procedure. The parties have fourteen days to file and serve objections to this Report and Recommendation. See 28 U.S.C. § 636(b)(1)(C); L. Civ. R. 72.1(c)(2).