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Nixon v. Aramark Corp.

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


April 17, 2008

CLIFTON W. NIXON, PLAINTIFF
v.
ARAMARK CORP., WARDEN DONATE, SGT. LABORASKI, LT. CARROLL, BARBARA FOX, NURSE PRACTITIONER (TONY), AMOS JULIAN, JOHN TORBECK, JIM BUCKLY, BOB TAUNEY, & BRUCE BESSEMER, DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 17th day of April, 2008, upon consideration of the report of the magistrate judge (Doc. 14), recommending that pro se plaintiff's action be dismissed for failure to prosecute, to which no objections were filed, and, following an independent review of the record, it appearing that the court granted plaintiff repeated extensions within which to file an amended complaint that complied with the requirements of the Federal Rules of Civil Procedure, (see Docs. 7, 9, 11, 13), that plaintiff was advised that failure to comply would result in dismissal, (see Doc. 11), and that plaintiff has not complied with these orders, see FED. R. CIV. P. 41(b) ("If the plaintiff fails to prosecute or to comply with . . . a court order, a defendant may move to dismiss the action or any claim against it."); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (interpreting Rule 41(b) of the Federal Rules of Civil Procedure 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 the court finding that plaintiff was advised of the necessity of complying with the court's orders 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 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 respond to the order of court dated October 29, 2007 (Doc. 13), 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. 14); see also Poulis, 747 F.2d at 869 (identifying availability of "[a]lternative sanctions" to dismissal as a factor), and that plaintiff's claims, lacking amendment, are without merit, see id. at 689-70 (identifying "[m]eritoriousness of the claim" as a factor)*fn1 , it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Doc. 14) is ADOPTED.

2. The claims against all defendants are DISMISSED with prejudice for failure to prosecute. See FED. R. CIV. P. 41(b).

3. Any appeal from this order is DEEMED frivolous and not in good faith. See 28 U.S.C. § 1915(a)(3).

4. The Clerk of Court is directed to CLOSE this case.

CHRISTOPHER C. CONNER United States District Judge


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