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Howard J. Mitchell v. Thomas Duffola

October 7, 2011

HOWARD J. MITCHELL, PLAINTIFF,
v.
THOMAS DUFFOLA, IN OFFICIAL AND INDIVIDUAL CAPACITY, THE CITY OF PITTSBURGH POLICE DEPARTMENT, DOE I (INCLUSIVE), DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

District Judge Nora Barry Fischer

REPORT AND RECOMMENDATION

I. Recommendation

It is respectfully recommended that the Complaint in the above-captioned case [ECF No. 3] be dismissed for failure to prosecute.

II. Report

Plaintiff, Howard J. Mitchell, has presented a civil rights complaint against Defendants Thomas Duffola, the City of Pittsburgh Police Department, and Doe I (Inclusive) alleging the violation of his rights under the Fourth and Fourteenth Amendments of the United States Constitution.

On June 21, 2011, this Court issued an Order informing Plaintiff of the reassignment of this action to the undersigned United States Magistrate Judge. The Order was returned by the United States Postal Service, indicating that Plaintiff is no longer at the Allegheny County Jail and has left no forwarding address. On September 14, 2011, an Order to Show Cause was issued on Plaintiff, returnable September 28, 2011, to show cause why this action should not dismissed for Plaintiff's failure to prosecute. To date, Plaintiff has failed to respond and has failed to notify the Court of his whereabouts or give any other indication that he wishes to proceed with this action.

It is clear that the punitive dismissal of an action for failure to comply with court orders is left to the discretion of the court. Mindek v. Rigatti, 964 F.2d 1369 (3d Cir. 1992). In determining whether an action should be dismissed as a sanction against a party the court must consider six factors. These factors, as set forth in Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863, 868 (3d Cir. 1984), are as follows:

(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 ...


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