Tosin Adegbuji v. Middlesex County

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2190
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TOSIN ADEGBUJI,
Appellant
v.
MIDDLESEX COUNTY; MICHAEL T. ABODE, Warden;
OFFICER JOHNSTON; NINE OTHER UNKNOWN OFFICERS NAMED
OFFICERS; SERGEANT LASALLA; MIDDLESEX COUNTY CORRECTIONS
COMMISSIONER; GWEN SCRUZZ; SANDRA VARGAS; DR. RAJESH WADHWA;
CONTRACT PHARMACY SERVICES; C.F.G. HEALTH SYSTEMS INC; ANTHONY
RUSSO; JAY BOTNICK; THOMAS JOHNSTON; MICHAEL ESPOSITO; SGT.
PEDRO DELGADO; ACTING WARDEN EDMOND CICCHI; MARK POWELL;
WOOD; LIEUTENANT GILRAIN; BOARD OF FREEHOLDER; MIDDLESEX
COUNTY ADULT CORRECTION CENTER; DEPARTMENT OF CORRECTION
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 03-cv-01757)
District Judge: Honorable Peter G. Sheridan
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 8, 2009
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: October 9, 2009 )
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OPINION
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Effective March 1, 2004, the INS was abolished and its functions transferred to the1
Department of Homeland Security (“DHS”).
2
PER CURIAM
Appellant Tosin Adegbuji, proceeding pro se, filed a civil rights lawsuit against
various corrections and medical defendants affiliated with the Middlesex County Adult
Correctional Center (“MCACC”) in April 2003. The complaint was based on events
occurring at MCACC while Appellant was being held there as an Immigration and
Naturalization Service (“INS”) detainee. While the underlying proceedings were1
pending, Appellant was granted withholding of removal to Nigeria but denied asylum.
He was subsequently removed to the United Kingdom, where he remains today. In an
opinion and order dated September 28, 2006, the District Court entered summary
judgment in favor of all defendants on all causes of action except: (1) against Defendants
Johnson and Botnick, on the charge that they used excessive force in restraining
Appellant while locking him in his cell, and (2) against Defendant LaSalla on the charge
that he retaliated against Appellant and violated his procedural due process rights. The
Court then set a trial date of December 5, 2006 for all remaining issues.
On November 20, 2006, Appellant filed a motion in the District Court requesting a
“90-day extension of time within which to begin the trial” due to his inability to enter the
country without prior permission from the Department of Homeland Security. Appellant
alleged that his application for permission to temporarily enter the United States had been
filed on November 5, 2006 and that he had been appointed counsel in connection with his

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The following week, the Court rescheduled the trial to March 21, 2007 at the request2
of one of the Appellees’ attorneys.
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appeal of the INS’s removal order and was awaiting a date for oral argument before the
Third Circuit Court of Appeals. In the alternative, Appellant requested that the Court
appoint counsel to represent him at trial. On November 27, 2006, the District Court
denied Appellant’s requests for a continuance of the trial date and for the appointment of
counsel. Noting Appellant’s failure to request permission to enter the United States until
November 5, despite the Court’s having informed the parties of the trial date on
September 28, the Court held that Appellant had not acted diligently in filing his request.
On December 8, 2006, with Appellant having failed to appear for trial, the Court
dismissed the action with prejudice and without costs.
On December 21, 2006, Appellant filed a motion for reconsideration of the
dismissal of the action based on his failure to appear at trial. In his motion, he explained
that he mailed his application for permission to re-enter the United States on October 4,
2006, three days after receiving notice of the trial date, and that it was received the
following day, but was not filed until November 5, 2006. He further represented that he
was informed by DHS that his application would require a minimum of 90 days from the
filing date for processing. Based on the foregoing, Appellant argued that he had
exercised diligence in seeking permission to re-enter.
On February 15, 2007, the District Court granted Appellant’s motion, and
rescheduled the trial for March 12, 2007. On March 7, two weeks before the trial was set2

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to begin, Appellant informed the Court that he had not yet received a response to his DHS
application, detailed his efforts to obtain further information about his status, and
requested a second adjournment. The court issued a one-sentence order denying his
request. On March 21, 2007, with Appellant and counsel for Appellees all appearing
telephonically, the Court denied Appellant’s requests: (i) for a bench trial, (ii) to conduct
the trial telephonically, and (iii) for a continuance. After hearing briefly from each of the
parties, the Court made the following findings on the record with respect to Appellant’s
request for a continuance:
The last thing we have here is whether or not, this is what Mr.
Adegbuji is requesting, another extension of time. [sic] Basically to be
permitted upon the facts that he’s trying to work through the Attorney
General or the Department of Homeland Security in order to secure some
type of permission to re-enter the country. Evidently Mr. Adegbuji had
been deported some time ago. He’s not authorized to enter the United
States at this time. He has obviously made some efforts but in November
he had represented to this Court he thought it would take 90 days. We’ve
now waited five months. As far as I can tell we’re no farther [sic] along the
process than we were five months ago. It’s speculative at best to think that
either the Attorney General or the Department of Homeland Security will
permit his re-entry into the United States. This case is four years old. I
think it was instituted in April of 2003. So, it’s one of the oldest cases on
the docket.
The Court is mindful that Mr. Adegbuji is not the only person that is
part of this case. There are officers, there’s [sic] municipalities. Fairness to
them requires that I bring a conclusion to this matter. Mr. Adegbuji has had
ample opportunity to be here and to be present. He’s unable to do that.
Although it may be for reasons out of his control, certainly the defendants
in this case also have a right to fairness and fairness in this instance dictates
that the case be dismissed at the present time with prejudice. I note that, I
guess the rules would provide that lack of prosecution by the plaintiff would
permit such dismissal.

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So, relying upon those rules, Mr. Adegbuji’s failure to appear for
trial twice now, warrants dismissal with prejudice.
(Supplemental App. 216.)
The District Court entered judgment against Appellant on March 28, 2007.
Appellant appealed, maintaining that the Court erred in dismissing the action with
prejudice rather than staying it pending his receipt of a response from DHS. On
September 7, 2007, after receiving responses from the parties, we entered an order
summarily vacating the District Court’s judgment and remanding the matter for explicit
consideration of the of the factors delineated in Poulis v. State Farm Fire & Cas. Co., 747
F.2d 863, 868 (3d Cir. 1984), which we have required district courts to consider in
connection with the entry of involuntary dismissal of a plaintiff’s action pursuant to
Federal Rule of Civil Procedure 41(b). Upon receipt of our order, the District Court
ordered briefing on the Poulis issue. On January 7, 2008, the Court entered an order
dismissing Appellant’s case with prejudice for the reasons set forth in the record.
On May 16, 2008, a transcript was entered onto the District Court docket reflecting
the District Court’s January 7, 2008 oral findings on the Poulis 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, 747 F.2d at 867 (emphasis in original).

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The Court held that it was difficult to evaluate the first, third or fourth factors in
this case, as Appellant was deported due to his own criminal conduct, but has not
intentionally delayed proceedings for reasons other than his removal from this country.
(Supplemental App. 233-34.) Additionally, while the Court concluded that there was
sufficient merit to Appellant’s underlying claims to permit them to proceed to trial, the
Court considered Appellant’s case to be “weak.” (Supplemental App. 234.) However,
the Court concluded that the second and fifth factors clearly favored Appellees:
In this case there is potential prejudice to the defendant. This case is
close to five years old at the present time. I believe that the attorneys for
the defendants had indicated that a number of the witnesses had retired or
left the service of the Middlesex County Department of Corrections. So,
there’s substantial prejudice to the defendants in this case.
. . .
The fifth factor is whether less restrictive sanctions are sufficient.
This is not a case of where other sanctions are available. It is a lack of
prosecution due to his immigration status. Plaintiff is required to be here at
the time of trial but it didn’t happen. I don’t believe there would be any
other sanction that would be available. Plaintiff has been given sufficient
time to resolve this matter.
. . .
So looking at all the factors it seems to me that the most substantial
one is the prejudice to the defendants. The case is five years old. When
cases get old, witnesses’ memories fade. In addition, some of the witnesses
may not be available, further prejudicing defendants. So it seems to me,
there’s substantial prejudice that warrants dismissal.
Having said that, the Court dismisses this case with prejudice after a
thorough consideration of the Poulis factors.
(Supplemental App. 233-34.) Although it concluded that the case should be dismissed,
the Court provided Appellant with an approximately six-month window during which he

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On January 18, 2008, Appellant timely filed a motion for reconsideration, which3
tolled the time for taking an appeal. See Fed. R. App. P. 4(a)(4). His notice of appeal
was filed on April 21, 2008, within thirty days of the District Court’s denial of his motion
for reconsideration. See id.; see also Fed. R. App. P. 4(a)(1)(A).
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could move to re-open the proceedings should he receive permission to re-enter the
United States. (Supplemental App. 234.) On July 23, 2008, the Court entered an order
extending that time period until November 1, 2008 based on Appellant’s representation
that he had an interview scheduled with the United States Embassy on August 29, 2008.
(Supplemental App. 182-83.) During that interview, it was determined that Appellant
was not eligible for a Non-Immigrant Visa Waiver and, therefore, would not be permitted
to enter the United States to attend trial. (Supplemental App. 185-87.)
Appellant timely appealed from the District Court’s January 7, 2008 order of
dismissal. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We3
review a dismissal for failure to prosecute for abuse of discretion. See In re Jewelcor
Inc., 11 F.3d 394, 397 (3d Cir. 1993).
Appellant argues that his civil action should not have been dismissed, as “all of the
six factors do not weigh in favor of dismissal.” (Appellant Br. 10.) However, we have
never required complete satisfaction of each Poulis factor in order to justify the sanction
of dismissal. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (“As we have
already recognized, not all of the Poulis factors need be satisfied in order to dismiss a
complaint.”); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988) (“Not all of these factors
need be met for a district court to find dismissal is warranted.”). Rather, we have stated

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that we will be guided by the way in which the District Court balanced all six of the
Poulis factors. See Poulis, 747 F.2d at 868; see also Quality Prefabrication, Inc. v. Daniel
J. Keating Co., 675 F.2d 77, 80 (3d Cir. 1982) (explaining that there must be some
“articulation of the basis for the [district court’s] action . . . [to] enable the reviewing
court to determine whether the relevant factors were considered and assigned appropriate
weight in making the decision”). As we have explained, we do not ask whether we would
have made the same decision as the District Court, but rather whether the District Court
abused its discretion in reaching the decision it did. See Mindek, 964 F.2d at 1373
(“Ultimately, the decision to dismiss constitutes an exercise of the district court judge’s
discretion and must be given great deference by this Court – a court which has had no
direct contact with the litigants and whose orders, calendar, docket and authority have not
been violated or disrupted.”). Based on the protracted proceedings which have transpired
below, the numerous opportunities the District Court provided Appellant to obtain
permission to re-enter the United States, the length of time which has transpired since
Appellant’s complaint was filed, and the District Court’s assessment of the prejudice to
Appellees and the lack of alternative sanctions, we cannot conclude that the District
Court’s decision constitutes an abuse of discretion. Appellant further argues that the
Court failed to make findings as to the prejudice to Appellees or the effectiveness of
sanctions other than dismissal. (Appellant Br. 12-13, 15-16.) However, the transcript of
the District Court’s findings belies this assertion.

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Based on the foregoing, we will affirm the judgment of the District Court.

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