United States District Court, M.D. Pennsylvania
September 15, 2005.
RAHEEM CHAMIR McCLELLEN and LENNOX DAVID, Plaintiffs
PIKE COUNTY, et al., Defendants.
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
AND NOW, this 15th day of September, 2005, upon consideration
of the order of court (Doc. 36) directing plaintiff McClellan to
file on or before September 9, 2005, a response showing cause why
the above-captioned action should not be dismissed for failure to
prosecute, and of the previous orders of court (Doc. 28, 34)
directing plaintiff to file a brief in opposition to defendants'
motion to dismiss (Doc. 13), and advising that failure to do so
could result in dismissal of this case for failure to prosecute,
and it appearing that as of the date of this order plaintiff has
not filed a response or brief in opposition to the motion to
dismiss, see FED. R. CIV. P. 41(b) ("For failure of the
plaintiff to prosecute or to comply with these rules or any order
of court, a defendant may move for dismissal of an action or any
claim against the defendant."); Link v. Wabash R.R. Co.,
370 U.S. 626, 630-31 (1962) (interpreting Federal Rule of Civil
Procedure 41(b) as permitting sua sponte dismissals by the
court); Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868
(3d Cir. 1984) (identifying six factors relevant to deciding
whether to dismiss for failure to prosecute), and it appearing
that plaintiff, acting pro se in this action, was advised of the necessity of promptly notifying the court of any
changes of his current address (Doc. 4), and of responding to
defendants' motion and to orders of court and is personally
responsible for failing to do so, see Poulis, 747 F.2d at 868
(identifying "extent of the party's personal responsibility" as
first factor), that plaintiff's conduct has prejudiced defendants
by requiring defendants to assume the cost of continued
preparation for trial without prompt resolution of the likely
meritorious motion to dismiss, see id. (identifying
"[p]rejudice to the adversary" as second factor), that
plaintiff's failure to respond to defendants' motion or orders of
court (Docs. 13, 28, 34, 36) or to file any documents in the
above-captioned case since the filing of the complaint on
December 2, 2004, constitutes a history of dilatoriness, see
Poulis, 747 F.2d at 868 (identifying "history of dilatoriness"
as third factor), that plaintiff's failure to respond to the
orders of court requiring prompt notification of any changes of
address (Docs. 4, 36), and directing answers to defendants
motions (Docs. 28, 34, 36) when previously advised by the court
that inaction may result in dismissal of the above-captioned case
constitutes willful disregard of the court's authority, see
id. at 868-69 (identifying "willful" or "bad faith" conduct as
fourth factor), that admission of certain facts or evidence or
assessment of costs against plaintiff would be ineffective to
deter plaintiff's conduct because plaintiff has already been
deemed not to oppose the motion*fn1 and because plaintiff is
proceeding in forma pauperis in this action (Doc. 9), see
id. at 869 (identifying availability of "[a]lternative
sanctions" to dismissal as fifth factor), and that plaintiff's claim likely lacks prima facie merit (Doc. 1,
13), see Poulis at 869-70 (identifying "[m]eritoriousness of
the claim" as sixth factor), it is hereby ORDERED that:
1. The action commenced by plaintiff McClellan is
DISMISSED for failure to prosecute. See FED. R.
CIV. P. 41(b).
2. The Clerk of Court is directed to TERMINATE
defendants' motion to dismiss (Doc. 13).
3. The Clerk of Court is further directed to CLOSE
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