United States District Court, M.D. Pennsylvania
December 19, 2005.
WENDELL K. BROWN, Plaintiff
DESMOND, WARDEN, et al., Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Presently pending is defendants' motion to dismiss plaintiff's
complaint. (Doc. 38). On November 22, 2005, because plaintiff had
not filed a brief in opposition to defendants' motion, see L.R.
7.6 ("Any party opposing any motion shall file a responsive
brief. . . . [or] shall be deemed not to oppose such motion."),
an order issued affording plaintiff until December 2, 2005, to
oppose the motion. (Doc. 42). At that time, plaintiff was
cautioned that his failure to file an opposition brief may result
in the granting of the motion, or dismissal of this case for
failure to prosecute. See L.R. 7.6; 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). Plaintiff has failed to file an opposition brief. As
such, his action will be dismissed for failure to prosecute.
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 Poulis, 747 F.2d at 868 (identifying "extent of the party's
personal responsibility" as first factor). 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).
Also, plaintiff's failure to respond to defendants' motion or
order of court (Docs. 38, 42), or to file any documents in the
above-captioned case since the filing of the amended complaint on
September 1, 2005, constitutes a history of dilatoriness. see
Poulis, 747 F.2d at 868 (identifying "history of dilatoriness"
as third factor). Further, plaintiff's failure to respond to the
order of court (Doc. 42) when 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).
Lastly, 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 motions*fn1 and because plaintiff is proceeding in
forma pauperis in this action (Doc. 7). See id. at 869
(identifying availability of "[a]lternative sanctions" to
dismissal as fifth factor). Consequently, plaintiff's action will
AND NOW, to wit, this 19th day of December, 2005, 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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