IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 2, 2010
TYRONE WALLACE, PLAINTIFF
DIRECTOR HARLEY G. LAPPIN, ET AL., DEFENDANTS
The opinion of the court was delivered by: Magistrate Judge Blewitt
REPORT AND RECOMMENDATION
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.
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 clearly stated in the District Court's January 25, 2010 Order, namely, his case would be dismissed. (Doc. 12). See Leininger v. Twoton, Inc., 2009 WL 1363386 (M.D. Pa.).
In Jackson v. Johnson, 2006 WL 2136218, *1 (M.D. Pa.), the Court stated that "Fed. R. Civ. P. 41(b) allows for the dismissal of an action where the Plaintiff fails to prosecute or fails to comply with rules or orders of the court."
The Jackson Court also stated: the factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984) [are analyzed] to determine whether dismissal of the action is appropriate in this case. The Poulis factors the Court should consider are: (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 entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868.
We agree with the Magistrate Judge's determination that the Plaintiff's dilatoriness outweighs any of the other considerations set forth in Poulis, and that Plaintiff's failure to comply with the Order of May 30, 2006 indicates that the Plaintiff has abandoned this lawsuit. Her inaction points to no other logical conclusion.
Thus, out of an abundance of caution, we also analyze the Poulis factors. We find Plaintiff's stated conduct in delaying his November 10, 2009 case for over three (3) months to be attributable to him personally. Plaintiff was initially required to file his Amended Complaint by December 22, 2009, and then he was required to have filed his Amended Complaint by February 9, 2010. As mentioned, we sua sponte afforded Plaintiff additional time within which to comply with the January 25, 2010 Order. Plaintiff has filed nothing in response to the stated Order, and he has not notified the Court that he intends to pursue his action.
We find that Plaintiff has caused prejudice to Defendants since they have been named in a federal lawsuit and no action, including service of a proper pleading, has been made on them to date, over three (3) months after the case was filed. Plaintiff also now has a history of dilatoriness in this case. Also, his present conduct in failing to prosecute his November 2009 case is further evidence of dilatoriness, especially since this case cannot proceed without his compliance with the January 25, 2010 Order.
Based on our discussion above, we find that the conduct of Plaintiff is wilful, especially since he has filed nothing with the Court in more than a month, since he has failed to respond to the January 25, 2010 Order, and since he has not contacted the Court to explain why he has failed to comply with the Order.
Plaintiff has been twice forewarned that his failure to comply with the Court's Orders will result in the dismissal of his case. As stated, this case cannot proceed without Plaintiff's compliance with the January 25, 2010 Order. Since we will recommend that Plaintiff's case be dismissed without prejudice, and since Plaintiff has not paid the filing fee, we find that other sanctions would not be effective in this case.
Thus, we find that the Poulis factors weigh in favor of dismissing this case without prejudice and that Plaintiff's failure to comply with the Court's January 25, 2010 Order demonstrates he has abandoned his case.
Based on the foregoing, it is respectfully recommended that the action be dismissed without prejudice on the basis of Plaintiff's failure to comply with the Court's January 25, 2010 Order. It is also recommended that Plaintiff's case be dismissed without prejudice on the basis of his failure to prosecute his action. Further, it is recommended that Plaintiff's Motion to proceed in forma pauperis (Doc. 5) be granted solely for the purpose of filing this action.
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 2, 2010.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
THOMAS M. BLEWITT United States Magistrate Judge