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Collins v. Garman

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


March 25, 2008

ED COLLINS, PLAINTIFF
v.
MIKE GARMAN, ET AL., DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 25th day of March, 2008, upon consideration of the Commonwealth defendants'*fn1 motion to dismiss for failure to prosecute (Doc. 27), and of the order of court dated February 21, 2008 (Doc. 25), directing plaintiff to file a brief in opposition to the Commonwealth defendants' motion to dismiss (Doc. 6) on or before March 21, 2008 and advising plaintiff that failure to do so could result in the dismissal of the claims against the Commonwealth defendants for failure to prosecute, and it appearing that plaintiff has not complied as of the date of this order,*fn2 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),*fn3 and the court finding that plaintiff was advised of the necessity of responding to the Commonwealth defendants' motion to dismiss in the order of court dated February 21, 2008 and is personally responsible for failing to do so, see id. at 868 (identifying "extent of the party's personal responsibility" as a factor), that plaintiff's conduct has prejudiced the Commonwealth defendants by requiring them to assume the cost of continued pre- trial and trial preparation, see id. (identifying "[p]rejudice to the adversary" as a factor), that plaintiff's failure to timely file an opposition to the Commonwealth defendants' motion to dismiss and to respond to the order of court dated February 21, 2008 constitutes a history of dilatoriness, see id. (identifying "history of dilatoriness" as a factor), that plaintiff's failure to respond when specifically ordered to do so constitutes willful disregard of the court's authority, see id. at 868-69 (identifying "willful" or "bad faith" conduct as a factor), that assessment of costs against plaintiff would be ineffective to deter plaintiff's conduct because plaintiff is proceeding in forma pauperis in this case, (see Doc. 9); see also Poulis, 747 F.2d at 869 (identifying availability of "[a]lternative sanctions" to dismissal as a factor), and that the majority of plaintiff's claimsagainst the Commonwealth defendants are likely withoutmerit,*fn4 see id. at 869-70 (identifying "[m]eritoriousness of the claim" as a factor), it is hereby ORDERED that:

1. The Commonwealth defendants' motion to dismiss for failure to prosecute (Doc. 27) is GRANTED. The Commonwealth defendants' motion to dismiss (Doc. 6) is DENIED as moot.

2. The claims against defendants Earl Crago, Barry Drew, Gregory Fajt, Mike Garman, Kim Glaser, James Honchar, Donald Patterson, Thomas Scott, Julie Sheridan, Paul Sload, Geraldine St. Jean, Brian Williams, Sarah Yerger, the Pennsylvania Department of Revenue, the Pennsylvania Office of Inspector General, and the Pennsylvania Office of Attorney General are DISMISSED for failure to prosecute. See FED. R. CIV. P. 41(b).

3. Plaintiff's remaining claims against defendants Joseph Craigwell, Molly Leach, and Allen Jones are unaffected by this order.*fn5

CHRISTOPHER C. CONNER United States District Judge


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