United States District Court, M.D. Pennsylvania
November 7, 2005.
ERIC S. BOWKER, Plaintiff
MRS. GUYSER, et al., Defendants.
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
AND NOW, this 7th day of November, 2005, upon consideration of
the order of court (Doc. 37) directing plaintiff, proceeding pro
se and in forma pauperis in this case, to file, on or before
October 28, 2005, a response showing cause why the
above-captioned action should not be dismissed for failure to
prosecute, and of the previous order of court (Doc. 36) directing
plaintiff to file a brief in opposition to the motion to dismiss
(Doc. 28), and advising that failure to do so could result in
dismissal of this case for failure to prosecute, and it appearing
that plaintiff has not filed a response or brief in opposition as
of the date of this order, 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 of 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), that plaintiff, acting pro se in this action, was
advised of the necessity of responding to defendants' motion and to orders of court and is
personally responsible for failing to do so, see id.
(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 the
orders of court (Docs. 28, 36, 37) constitutes a history of
dilatoriness, see id. (identifying "history of dilatoriness"
as third factor), that plaintiff's failure to respond to the
orders of court 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 case (Doc. 16), see
id. at 869 (identifying availability of "[a]lternative
sanctions" to dismissal as fifth factor), and that plaintiff's
claim likely lacks merit (see Docs. 1, 32), see id. at
869-70 (identifying "[m]eritoriousness of the claim" as sixth
factor); see also Peterkin v. Jeffes, 855 F.2d 1021, 1039 (3d
Cir. 1988) (establishing that "it must first be shown that the
proceeding involves access to the courts" and that "some actual
injury, that is, an `instance in which an inmate was actually denied access to the
courts,' has occurred"), it is hereby ORDERED that:
1. The above-captioned action is DISMISSED for failure to
prosecute. See FED. R. CIV. P. 41(b).
2. The Clerk of Court is directed to CLOSE this case.
3. Any appeal from this order is DEEMED frivolous and not in
good faith. See 28 U.S.C. § 1915(a)(3).
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