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Tucker v. Harper

July 24, 2006

CORNELIUS TUCKER, JR., PLAINTIFF,
v.
DARRELL HARPER, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Lenihan

Judge Terrence F. McVerrey

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Complaint in the above-captioned case be dismissed due to Plaintiff's failure to prosecute this action.

II. REPORT

Plaintiff, Cornelius Tucker, Jr., commenced this action pursuant to the rule announced in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), wherein the Supreme Court recognized a cause of action for damages against a federal agent when, acting under color of his authority, he violated an individual's constitutional rights. Named as Defendants are various federal agents and employees.

A. Relevant Procedural History

On August 4, 2005, Plaintiff filed a Motion to Proceed In Forma Pauperis, which this Court granted on September 20, 2005. On October 8, 2005, this Court ordered Plaintiff to file an amended complaint in compliance with the Federal Rules Of Civil Procedure by November 4, 2005 (dkt. no. 4). On November 14, 2005, Plaintiff filed a change of address listing a North Carolina address (dkt. no. 5). On December 1, 2005, this Court issued another Order requiring Plaintiff to file an amended complaint by December 21, 2005 (dkt. no. 6). After Plaintiff failed to respond, on June 1, 2006, this Court ordered him to show cause why his Complaint should not be dismissed for failure to prosecute. To date, Plaintiff has failed to respond to this Court's Orders and has failed to do anything to actively prosecute his action.

B. Plaintiff's Failure to Prosecute

A federal court has the discretion to dismiss a proceeding based on a party's failure to prosecute the action. Mindek v. Rigatti, 964 F.2d 1369 (3d Cir. 1992). In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984), the Court of Appeals for the Third Circuit set out a six-factor balancing test to guide a court's analysis as to whether to dismiss a claim as a sanction:

(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 ...


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