Donald Higgs v. Gary Lanigan

• Court: Court of Appeals for the Third Circuit
• Decided: February 13, 2024
• Docket: 23-2851
• Status: Unpublished

Opinion

CLD-058 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2851 ___________

DONALD D. HIGGS, Appellant

v.

GARY LANIGAN; JOHN DOE(S), employees of JPay; JPAY COMPANY ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 1-18-cv-08087) District Judge: Honorable Renee Marie Bumb ____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 18, 2024 Before: KRAUSE, FREEMAN, and SCIRICA, Circuit Judges

(Opinion filed: February 13, 2024) _________

OPINION * _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Donald D. Higgs, proceeding pro se, appeals the District Court’s dismissal of his

civil rights action for failure to prosecute. For the reasons that follow, we will summarily

affirm the District Court’s dismissal.

I

In 2018, Higgs filed a federal civil rights complaint under 42 U.S.C. § 1983 while

incarcerated at Bayside State Prison (“Bayside”). DC ECF 1. He alleged that the named

defendants had unlawfully retaliated against him for exercising his First Amendment

rights. Id. In November 2018, the Court issued a screening order pursuant to 28 U.S.C. §

1915(a) in which, inter alia, it dismissed without prejudice all claims save those against

defendant Smith and granted Higgs in forma pauperis status. DC ECFs 2, 3.

Simultaneously, the Clerk of the District Court sent Higgs a letter explaining how to

obtain service of process by the U.S. Marshals Service (USMS) and explaining that the

burden of ensuring service occurred rested with Higgs. DC ECF 4. The Clerk received

Higgs’ completed USM 285 form in December, but erroneously issued summonses only

to those defendants who had already been dismissed from the action. DC ECF 5, 6.

Two subsequent orders sent by the Court to Higgs in January and February 2019

were returned because Higgs was no longer incarcerated at Bayside, and no forwarding

address was on file. DC ECFs 8-10. Unknown to the Court, Higgs had been transferred

to Northern State Prison. DC ECF 20. Because the order reopening the case was returned

and the Court had not heard from Higgs, in February 2019 the District Court dismissed

Higgs’ complaint without prejudice under Local Civil Rule 10.1(a), which requires

2 parties to keep the Court appraised of any changes in address. DC ECFs 10, 11. The copy

of this Order sent to Higgs was also returned as undeliverable. DC ECF 13.

More than four years after the order dismissing Higgs’ claim, Higgs filed a motion

to reopen. DC ECF 16. The Court granted the motion but ordered Higgs to show cause as

to why the complaint should not be dismissed for failure to prosecute under FRCP 41(b).

DC ECF 17. In response, Higgs claimed that he had notified the Court via a letter that he

had been transferred to Northern State Prison and argued that the case should remain

open and defendant Smith should be served to correct the Court’s clerical error regarding

service. DC ECF 18. After carefully considering the factors set forth in Poulis v. State

Farm Fire & Cas. Co., the District Court determined that five of six supported dismissal

of Higgs’ action for failure to prosecute. DC ECF 20, citing 747 F.2d 863, 868 (3d Cir.

1984).

In particular, the Court emphasized that Higgs had been responsible for the

progress of his case. DC ECF 20 at 6, citing Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir.

2008). The Court reasoned that while a clerical error had initially impeded service of

process, Higgs’ failure to inquire about the status of his case for over four years, or twice

the length of the statute of limitations for his claim, created substantial prejudice to the

remaining defendant, who was never notified of the suit. Id. at 6-8, citing Dique v. New

Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010). The Court also noted that Higgs

had reached out and resumed prosecution of another pending matter, Higgs v. Myers, in

June 2019, but failed to resume or inquire about the instant action. Id. at 8. The Court

considered other sanctions to be ineffective and issued the order in question dismissing

3 the case. Id. The only Poulis factor which arguably cut against dismissal was the merit of

Higgs’ remaining claims, which had survived screening under 28 U.S.C. § 1915A. Id. at

8-9. Based on this analysis, the District Court dismissed Higgs’ case with prejudice for

failure to prosecute. Id. This appeal followed.

II

We have jurisdiction under 28 U.S.C. § 1291 and review a District Court’s

decision to dismiss a plaintiff’s case under Federal Rule of Civil Procedure 41(b) for an

abuse of discretion. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). Summary

action is appropriate if there is no substantial question presented in the appeal. See 3d

Cir. L.A.R. 27.4. We may summarily affirm a District Court’s decision “on any basis

supported by the record” if the appeal fails to present a substantial question. Murray v.

Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

In exercising its discretion to dismiss for failure to prosecute, a district court must

first consider a variety of factors, including “(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 . . . 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 omitted).

4 III

On appeal, Higgs again argues that he properly completed USM 285 to effectuate

service, and that he complied with the District Court’s change of address rules by sending

a letter notifying the Clerk of his impending transfer to Northern State Prison. CA ECF 8.

Notwithstanding Higgs’ efforts, we cannot say that the District Court abused its

discretion in dismissing the case.

The letter the Clerk sent to Higgs along with the USM 285 forms plainly states

that the litigant must inquire of the USMS as to whether service has been made. DC ECF

4. And following any attempt to advise the District Court of his change of address, Higgs

failed to inquire about this litigation for over four years, or twice the length of the statute

of limitations for his action against a defendant who was never served and was thus

unaware of the need to mount a defense. DC ECF 20 at 7. “[S]tatutes of limitations serve

compelling policy interests,” including “… protect[ing] defendants from having to

confront controversies in which the search for truth may be thwarted by the loss of

evidence, the fading of memories, or the disappearance of witnesses,” and to relieve

courts of the burden of stale claims. National Iranian Oil Co. v. Mapco Intern., 983 F.2d

485, 493 (3d Cir. 1992) (citations omitted). As the District Court observed, Higgs’

inactions frustrated these interests.

Accordingly, we will affirm the judgment of the District Court.