UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA
April 26, 2011
GEORGE HEATH-EL, PLAINTIFF,
HARRISBURG HOUSING AUTHORITY, DEFENDANT.
The opinion of the court was delivered by: Malachy E. Mannion United States Magistrate Judge
MANNION, M.J. JONES, D.J.
REPORT AND RECOMMENDATION*fn1
On January 5, 2011, plaintiff George Heath-El, proceeding pro se, commenced this action by filing a complaint against defendant Harrisburg Housing Authority. (Doc. No. 1). On that same day, the plaintiff also filed a motion to proceed in forma pauperis, (Doc. No. 2). Upon reviewing that motion, the court will grant the plaintiff's motion to proceed in forma pauperis.
On March 28, 2011 this court issued an order directing the plaintiff to file an amended complaint "because a review of the plaintiff's complaint indicates that he has failed to bring any federal claims against the defendant". (Doc. No. 5). The court notes that on April 4, 2011 undeliverable mail was returned to the clerk and was subsequently re-mailed to the plaintiff at his Hummelstown street address. To date, the plaintiff has failed to file his amended complaint or request additional time in which to do so.
The plaintiff's failure to comply with this Court's order constitutes a failure to prosecute this action and therefore this action is subject to dismissal pursuant to Fed. R. Civ. P. 41(b), which states in pertinent part:
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. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.
The Third Circuit has long held that Rule 41(b) does not prohibit the sua sponte dismissal of actions against a defendant.
As was said in Link v. Wabash R.R., where the plaintiff argued that F.R.C.P. 41(b) by negative implication prohibits involuntary dismissal except on motion by the defendant, no restriction on the district court's power should be implied: 'The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an "inherent power," governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.' Kenney v. Cal. Tanker Co., 381 F.2d 775, 777 (3d Cir. 1967).
In the instant action, the Court cannot properly control its docket, move this action forward and properly protect the rights of all parties if the plaintiff fails to comply with orders issued by this Court. Moreover, such conduct should not be condoned in light of the large pro se and prisoner dockets presently pending before the federal courts, all of which require prompt and thorough review.
Finally, the plaintiff was advised in the Court's most recent order of March 28, 2011 that "Should plaintiff fail to file his amended complaint within the required time period, or fail to follow the above mentioned procedures, a recommendation will be made to dismiss this action." (Doc. No. 5). The plaintiff's failure to comply with this Court's order, justifies dismissal of his action.
On the basis of the foregoing, IT IS RECOMMENDED THAT: the instant action be DISMISSED pursuant to Fed. R. Civ. P. 41(b) and this Court's inherent powers.
N O T I C E
Any party may obtain a review of the magistrate judge's above proposed determination pursuant to Rule 72.3, M.D.PA, which provides: 7 2 . 3
REVIEW OF REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGES ADDRESSING CASE DISPOSITIVE MOTIONS
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.