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Paul Joseph Pavalone v. County of Lackawanna Pennsylvania

October 31, 2011

PAUL JOSEPH PAVALONE ,
PLAINTIFF
v.
COUNTY OF LACKAWANNA PENNSYLVANIA, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Paul Joseph Pavalone ("plaintiff "), an inmate incarcerated at the Lackawanna County Prison, Scranton, Pennsylvania, at the time he commenced this action on August 5, 2011, named the following defendants: County of Lackawanna Pennsylvania; Lackawanna County Domestic Relations; Lackawanna County Public Defender's Office; Lackawanna County District Attorney's Office; Lackawanna County Prison; Federal Bureau of Investigation; Attorney Petorak; Attorney Mastri, Detective Justin Leri; Detective Chris Kolcharno; Mary Muscari; Thomas Baker; Tim Cannon; Carbondale Police Department. (Doc. 1.) Plaintiff moves to proceed in forma pauperis. (Docs. 2, 5.) For the reasons set forth below, the action will be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to follow a court order.

I. Procedural Background

Preliminary review of the complaint revealed that plaintiff included a whole host of unrelated claims which include, but are not limited to, conspiracy, unlawful arrest, poor conditions of confinement, false criminal charges and a coerced guilty plea, and do not involve an issue of law or fact common to the various entities and individuals named as defendants. (Doc. 1.) Consequently, by Order dated October 18, 2011 (Doc. 8), he was directed to file an amended pleading which strictly adheres to the mandates of Federal Rules of Civil Procedure, Rule 8, General Rules of Pleading, and Rule 20, Permissive Joinder of Parties.*fn1 Although the deadline for filing the amended complaint has not yet passed, the October 18, 2011 Order was returned to the Court on October 25, 2011, as undeliverable in an envelope marked "Return to Sender Inmate not at this Facility." (Doc. 9.)

This Court's Standing Practice Order, which was forwarded to plaintiff on August 22, 2011, specifically states that "[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. 4, at 4.)

II. Discussion

Federal Rule of Civil Procedure 41(b) provides that an action may be involuntarily dismissed "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Further, the rule permits sua sponte dismissals by the court. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Hewlett v. Davis, 844 F.2d 109, 114 (3d Cir. 1988) (same). In determining whether to exercise its discretion to dismiss as a sanction for failure to prosecute and failure to comply with court orders, a district court must balance the six factors set forth in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984): (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. Ware v. Rodale Press, Inc., 311 F.3d 218, 221 (3d Cir. 2003); see also Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-78 (3d Cir.1994) (applying Poulis factors to dismissal under Rule 41(b)). The court must consider all six factors. Ware, 322 F.3d at 221-22; United States v. $8,221,877.16 in United States Currency, 330 F.3d 141, 162 (3d Cir. 2003).

A. Analysis of the Poulis Factors

1. The extent of the party's personal responsibility Pursuant to this Court's Standing Practice Order, a pro se plaintiff has the obligation to inform the court of address changes. (Doc. 4) The Court's October 18, 2011 Order, requiring plaintiff to amend his complaint, was returned as undeliverable. A review of Vinelink*fn2 , a web site that allows a custodial search of Pennsylvania State inmates, reveals that plaintiff was released from custody by court order on October 4, 2011. Plaintiff has failed to notify the Court of his new address and it can therefore only be concluded that he is personally responsible for failing to comply with the Standing Practice Order.

2. The prejudice to the adversary "Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment." Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir. 1994)(internal quotations and citations omitted.) Generally, prejudice includes "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories or the excessive and possibly irremediable burdens or costs imposed on the opposing party." Id. at 874. In the matter sub judice, plaintiff's failure to move the litigation forward has resulted in no prejudice to defendants as the complaint has not yet been served.

3. A history of dilatoriness "Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders." Adams, 29 F.3d at 874; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003) (finding that a history of dilatory conduct existed because the plaintiffs "failed repeatedly" to provide a damages calculation for the defendant); Emerson, 296 F.3d at 191 (finding that a history of dilatory conduct existed because the "procedural history of this case reflects continuous dilatoriness" as demonstrated by the plaintiff's multiple requests for stays and failure to comply with multiple deadlines). Although the plaintiff failed to comply with the Standing Practice Order by notifying the Court of his change of address, it cannot be said that such an isolated event constitutes dilatory conduct.

4. Was the conduct willful or in bad faith?

Under this factor, the District Court must consider whether the conduct was "the type of willful or contumacious behavior which was characterized as flagrant bad faith." Adams, 29 F.3d at 875 (internal quotation marks and citation omitted). Generally, "[w]illfulness involves intentional or self-serving behavior." Id. ; see also Emerson, 296 F.3d at 191 (finding bad faith because the conduct went beyond mere negligence). Plaintiff has not displayed willful conduct or bad faith.

5. Effectiveness of sanctions other than dismissal Ordinarily, a District Court must consider the availability of sanctions alternative to dismissal. Poulis, 747 F.2d at 869. However, where a plaintiff is proceeding pro se, and moreover, is proceeding in forma pauperis, as is the case here, it has been found that no alternative sanctions existed because monetary sanctions, including attorney's fees, "would not be an effective alternative." Emerson, 296 F.3d at 191. In a scenario such as the present one, where the court is ...


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