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Moran v. Donate

May 6, 2009

FRANCIS J. MORAN, PLAINTIFF
v.
JANINE DONATE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Plaintiff Francis J. Moran, a pro se prisoner formerly incarcerated at the Lackawanna County Prison, commenced this civil rights action on July 9, 2008, naming as defendants Janine Donate, warden, Dr. Zaloga and Barbara Fox, head nurse. (Doc. 1). For the reasons set forth below, the matter will be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

I. Procedural Background

As noted above, this action was commenced on July 9, 2008. (Doc. 1.)

Shortly thereafter, the court ordered service of the complaint on all defendants. (Doc. 7.) The summonses were returned indicating that personal service was accomplished on all defendants on July 31, 2008. (Doc. 13.) On August 13, 2008, an entry of appearance was filed on behalf of all defendants. (Doc. 9.) A few days later, counsel filed an amended entry of appearance indicating that he only represented defendant Donate. On August 18, 2008, counsel filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) on behalf of defendant Donate, as well as a brief in support of the motion. (Docs. 11, 12.)

Plaintiff failed to file a brief in opposition to the motion in accordance with the Local Rules of Court. L.R. 7.6. On September 30, 2008, an order issued affording plaintiff the opportunity to file an opposition brief by October 15, 2008, and cautioned him that his failure to file a brief would result in the motion being deemed unopposed and granted without an analysis of the merits of the claim against defendant Donate. (Doc. 14, citing L.R. 7.6.) Plaintiff failed to file a brief as directed. Consequently, on October 21, 2008, an order was issued deeming the motion to dismiss unopposed, granting defendant's motion, and terminating Donate as a defendant. (Doc. 15.) He was also directed to notify the court by November 5, 2008, whether he intended to pursue the matter against the remaining defendants. (Id.)

On October 30, 2008, plaintiff filed a notice of change of address and requested a copy of the docket sheet. Two weeks later, on November 13, 2008, he filed a letter "to notify the Court of Plaintiff's intention to pursue this matter against the remaining defendants and all original defendants in the case identified above, and to inform the Court of all the unfortunate mishaps and inadvertent misfortunes that he has experienced and been subject to due [to] his re-arrest and re-commitment into State custody by State Parole Officials." (Doc. 18, at 1.) He stated that because of his re-arrest and subsequent detention at the Lackawanna County Prison and State Correctional Institution at Dallas, he did not receive documents 11 through 15, which included the motion to dismiss (Doc. 11), brief in support of the motion (Doc. 12), and the court orders directing him to respond to the motion (Doc. 14) and deeming the motion to dismiss as unopposed and granting the motion (Doc. 15). He further stated that he would "notify the Court of it all via Motion(s) to seek relief from judgment and order(s), which will follow this letter in a separate envelope." (Id.)

More than two more months passed without any communication from plaintiff. Therefore, on January 22, 2009, an order was issued directing him to show cause why the action should not be dismissed for failure to prosecute. In his February 6, 2009, response, he detailed the difficulties he was experiencing in utilizing the law library, but represented the following:

Plaintiff is in the process of mailing to this Court a Motion and Affidavit to Vacate Order . . . in the next couple of days, which explains the entire ordeal and chain of custody and events that this Plaintiff have [sic] experience and been subjected to in the last several months, all outside his control, as well as a Request to Clerk for Entry of Default (on the remaining defendants). This Plaintiff only need a few more days to have said documents notarized, photocopied and mailed out. (Doc. 20, at 3.) Three more weeks passed without any activity.

On February 27, 2009, another order was issued directing "that plaintiff shall take action to move the litigation forward on or before March 16, 2009, or the matter will be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute." (Doc. 21.)

Plaintiff has taken no further action. Nor has he communicated with the court in any fashion.

II. Discussion

Federal Rule of Civil Procedure 41(b) permits a District Court to dismiss a plaintiff's case for failure to prosecute. See FED.R.CIV.P. 41(b) ("If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it."). In so doing, the court must balance the following factors: (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 willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which ...


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