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Suncar v. Shermeyer

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


June 8, 2009

RASHUN RAFEAL SUNCAR PLAINTIFF
v.
OFFICER SHERMEYER AND OFFICER RASIER, DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 8th day of June, 2009, upon consideration of the report of the magistrate judge (Doc. 15), recommending that pro se plaintiff's action be dismissed for failure to prosecute, to which no objections were filed, and upon further consideration of the motion to appoint counsel (Doc. 3), and following an independent review of the record, it appearing that the court repeatedly instructed plaintiff to either file an affidavit in support of his request to proceed in forma pauperis or to pay the filing fee, (see Docs. 6, 8, 11), that plaintiff was advised that failure to comply with court orders would result in dismissal, (see Doc. 8), 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),*fn1 and it further appearing that plaintiff failed to advise the court of a change to plaintiff's address,*fn2 (see Docs. 9, 10, 12, 13, 14, 16), and the court finding that plaintiff was informed of the necessity of complying with the court's orders 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 a factor), that plaintiff's failure to respond to the orders of court dated December 9, 2008 (Doc. 6), January 15, 2009 (Doc. 8), and February 10, 2009 (Doc. 11) demonstrates a pattern of dilatoriness, see id. (identifying "history of dilatoriness" as a factor), that the failure to file a proper change of address with the court and the 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); Wesley v. Dixon, 198 F. App'x 249, 251 (3d Cir. 2006), and that assessment of costs against plaintiff would be ineffective to deter plaintiff's conduct because plaintiff is requesting to proceed in forma pauperis in this case, (see Doc. 2); see also Poulis, 747 F.2d at 869 (identifying availability of "[a]lternative sanctions" to dismissal as a factor),*fn3 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 without prejudice. See FED. R. CIV. P. 41(b).

3. The motion to appoint counsel (Doc. 3) is DENIED as moot.

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

CHRISTOPHER C. CONNER United States District Judge


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