IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
December 16, 2010
REBECCA LYNNE HARRIS,
YORK COUNTY ADULT PROBATION DEPARTMENT ET AL., DEFENDANTS.
The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge
(Judge Jones) (Magistrate Judge Carlson)
REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This case is a pro se civil rights action filed by the Plaintiff on September 9, 2010. (Doc 1.) On September 9, 2010, at the inception of this case, this Court notified the Plaintiff of her obligations as a pro se litigant in a practice order, stating in clear and precise terms as follows:
C. A Pro Se Plaintiff's Obligation to Inform the Court of Address Changes.
A pro se plaintiff has the affirmative obligation to keep the court informed of his or her current address. If the plaintiff changes his or her address while this lawsuit is being litigated, the plaintiff shall immediately inform the court of the change, in writing. If the court is unable to communicate with the plaintiff because the plaintiff has failed to notify the court of his or her address, the plaintiff will be deemed to have abandoned the lawsuit. (Doc. 5.)
On September 9, 2010, the Court entered an order dismissing this pro se complaint without prejudice, but providing the Plaintiff with an opportunity to amend her complaint, provided that she acted within 30 days. (Doc. 6.) The Plaintiff then requested an extension of time in which to amend her pleadings, (Doc. 7) which request was granted by the Court on October 4, 2010. (Doc. 8.) That order stated in clear and precise terms that the "Plaintiff SHALL FILE an Amended Complaint by December 10, 2010 or this action SHALL BE DISMISSED." (Doc. 8.)
Following the entry of this order Harris has taken no action to comply with the Court's October 4, 2010 order, and the deadline for compliance with that order has now passed. Moreover, we have received notice that mail sent to Harris at the address which she provided to the Court has been returned as undeliverable, indicating that Harris has failed to abide by this basic court-ordered obligation to keep the Court informed of her whereabouts. (Doc. 9.)
On these facts, where Harris is not in compliance with court orders; Harris' current whereabouts are unknown; and Harris' inability or unwillingness to litigate the case which she has filed is frustrating efforts to resolve this matter, we recommend that the case be dismissed.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: " 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." F. R. Civ. P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court, and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002)(citations omitted). That discretion, however, while broad is governed by certain factors, commonly referred to as Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of 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 entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).
Emerson, 296 F.3d at 190. Recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson v. Thiel College, supra; Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007).
In this case, a dispassionate assessment of the Poulis factors weighs heavily in favor of dismissing this action. At the outset, a consideration of the first Poulis factor, the extent of the party's personal responsibility, shows that the delays in this case are entirely attributable to the Plaintiff, who has failed to abide by court orders and has now made communication by the Court with this party virtually impossible. Similarly, the second Poulis factor-- the prejudice to the adversary caused by the failure to abide by court orders--also calls for dismissal of this action. The Plaintiff's failures to communicate with the Court, comply with court orders, or provide a means for us to communicate with her, now delay the resolution of this action. In such instances, dismissal of the case clearly rests in the discretion of the trial judge.Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007) (failure to timely serve pleadings compels dismissal); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007) (failure to comply with discovery compels dismissal); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007) (failure to file amended complaint prejudices defense and compels dismissal).
When one considers the third Poulis factor-the history of dilatoriness on the plaintiff's part--it becomes clear that dismissal of this action is now appropriate. The Plaintiff has now failed to timely file pleadings, and comply with orders of the Court, and we are utterly unable to communicate with the Plaintiff, whose whereabouts are unknown.
The fourth Poulis factor--whether the conduct of the party or the attorney was willful or in bad faith--also cuts against the Plaintiff. At this juncture, when the Plaintiff has failed to comply with instructions of the Court directing the Plaintiff to take specific actions in this case, the Court is compelled to conclude that the Plaintiff's actions are not accidental or inadvertent but instead reflect an intentional disregard for this case and the Court's instructions.
While Poulis also enjoins us to consider a fifth factor, the effectiveness of sanctions other than dismissal, cases construing Poulis agree that in a situation such as this case, where we are confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Briscoe v. Klaus, 538 F.3d 252, 262-63 (3d Cir. 2008); Emerson, 296 F.3d at 191. This case presents such a situation where the Plaintiff's status as a pro se litigant severely limits the ability of the Court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. In any event, by entering our prior orders, and counseling the Plaintiff on her obligations in this case, we have endeavored to use lesser sanctions, but to no avail. The Plaintiff still declines to obey court orders, and otherwise ignores her responsibilities as a litigant. Since lesser sanctions have been tried, and have failed, only the sanction of dismissal remains available to the Court.
Finally, under Poulis we are cautioned to consider one other factor, the meritoriousness of the plaintiff's claims. In our view, consideration of this factor cannot save the Plaintiff's case from dismissal. Indeed, this Court has already concluded that the Plaintiff failed to state a valid cause of action, but permitted her one last opportunity to amend her pleadings, which she has now forfeited by failing to abide by the two- month deadline given to her by the Court. Therefore, in this case all of the Poulis factors call for dismissal of this case.
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the Plaintiff's complaint be dismissed with prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Parties are further placed on notice that pursuant to Local Rule 72.3:
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.
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