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Wallace v. Lappin

March 2, 2010

TYRONE WALLACE, PLAINTIFF
v.
DIRECTOR HARLEY G. LAPPIN, ET AL., DEFENDANTS



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

Judge Jones

REPORT AND RECOMMENDATION

I. Background

Plaintiff Tyrone Wallace, an inmate at the United States Penitentiary at Lewisburg, Pennsylvania, filed this civil rights action, pursuant to 28 U.S.C. § 1331, on November 10, 2009. (Doc. 1) Plaintiff is proceeding pro se. Plaintiff also filed a motion to proceed in forma pauperis. (Doc. 5).*fn1

On December 7, 2009, the Court entered an Order which directed Plaintiff to file an amended complaint within fifteen (15) days of the date of said Order. The 9-page Order specified in detail the deficiencies of Plaintiff's original Complaint. Said Order further stated that Plaintiff's failure to timely file his amended complaint will result in the issuance of a report and recommendation that his action be dismissed for failure to prosecute. (Doc. 8).

When Plaintiff failed to timely file his Amended Complaint, the undersigned issued a Report and Recommendation on January 6, 2010, which recommended that Plaintiff's Complaint be dismissed. (Doc. 9). Plaintiff filed Objections to the Report and Recommendation on January 15, 2010. (Doc. 10). On the basis of those Objections, the District Court issued an Order on January 25, 2010, rejecting our Report and Recommendation, remanding the matter to the undersigned, and directing Plaintiff to file his Amended Complaint within fifteen (15) days of the date of the Order. (Doc. 12). The Court specifically cautioned Plaintiff that his action would be dismissed if he failed to comply with the Doc. 12 Order. (Id., p. 2).

The time in which Plaintiff was to have filed his Amended Complaint has expired. The Court, sua sponte, gave the pro se Plaintiff an additional twenty-one (21) days to file his Amended Complaint. The Plaintiff has neither filed his Amended Complaint nor requested an extension of time in which to do so. In fact, the Court has received no filings from the Plaintiff since he filed his Doc. 10 Objections on January 15, 2010.

II. Discussion

Pursuant to 28 U.S.C. § 1915(e)(2)(B), in proceedings in forma pauperis, a court shall dismiss a claim if it determines that the claim "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." See Nelson v. Dauphin County Prison, 2009 WL 4269087 (M.D. Pa.). Pro se litigants, such as Plaintiff, are accorded substantial deference in federal court. See Haines v. Kerner, 404 U.S. 519 (1972); Hughes v. Rowe, 449 U.S. 5 (1980). They are not, however, free to ignore the Federal Rules of Civil Procedure.

Federal Rules of Civil Procedure 8(a)(2) requires that, in order to state a claim, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," which "give[s] the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1959 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus, "[a] party must state its claims... in numbered paragraphs, each limited to a single set of circumstances" and, "if doing so would promote clarity, each claim founded on a separate transaction or occurrence... must be stated in a separate count... " Fed.R.Civ.P. 10(b).

Plaintiff's original Complaint clearly did not meet the requirements of the Federal Rules of Civil Procedure as detailed in our December 7, 2009 Order. (Doc. 8). As stated, Plaintiff was afforded fifteen (15) days from the date of the January 25, 2010 Order to file his Amended Complaint. (Doc. 12). Additionally, as stated, the Court warned Plaintiff that his failure to comply with the January 25, 2010 Order would result in a dismissal of his case. (Doc. 12).

Federal Rule of Civil Procedure 41(b) allows for the dismissal of an action for "failure of the plaintiff to prosecute or comply with these rules or order of court,..." (emphasis added). In the instant case, Plaintiff has failed to both prosecute his action and to comply with the Order of this Court by his failure to timely file his Amended Complaint. We shall recommend that this case be dismissed due to Plaintiff's failure to prosecute it and due to his failure to comply with the District Court's Order. (Doc. 12). Plaintiff should be deemed as abandoning his action. See McCray v. Dauphin Co. Prison, 2007 WL 431886 (M.D. Pa); Nelson v. Berbanier, 2006 WL 2853968 (M.D. Pa.).

Since we find that Plaintiff's conduct clearly shows that he intended to abandon his case, we do not find that an analysis of the factors of Poulis v. State Farm Fire & Cas. Co., 747 F.3d 863, 868 (3d Cir. 1984), is required before recommending that this case be dismissed under Rule 41(b). See Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994); Guyer v. Beard, 907 F. 2d 1424 (3d Cir. 1990)(the district court's requirement to perform an analysis under Poulis is obviated where Plaintiff's conduct is so egregious as to demonstrate an abandonment of his case).

Our Plaintiff has taken no action with respect to his case since he filed his Objections to our initial Report and Recommendation on January 15, 2010, over one month ago. The behavior of Plaintiff constitutes a wilful failure to prosecute his case, as opposed to a situation in which he has had problems in pursuing his case but made efforts to comply with this Court's January 25, 2010 Order. We find that Plaintiff's "behavior has been so egregious as to make self-evident the factual findings and analysis [of the Poulis factors]." Williams v. Kort, 223 Fed. Appx. 95, 103 (3d Cir. 2007). The consequences if Plaintiff failed to prosecute his case were ...


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