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Clarence D. Schreane v. Ronnie Holt

March 21, 2012

CLARENCE D. SCHREANE, PLAINTIFF,
v.
RONNIE HOLT, WARDEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

(MAGISTRATE JUDGE BLEWITT)

MEMORANDUM

Presently before the Court is the Magistrate Judge's Report and Recommendation ("R & R") (Doc. 20) to dismiss Plaintiff's case without prejudice for failure to prosecute this action. Also before the Court are Plaintiff's Motions to Appoint Counsel. (Doc. 13; Doc. 22.) On December 20, 2011, Magistrate Judge Blewitt issued a R & R recommending dismissal of Plaintiff's case without prejudice for failure to prosecute. Objections to the R & R were to be filed on or before January 6, 2011. No objections were filed by Plaintiff. Instead, on January 5, 2011, Plaintiff filed an Amended Complaint. Because Plaintiff has not abandoned his case, the Magistrate Judge's recommendation to dismiss this case without prejudice will be rejected. However, because Plaintiff's claim has not yet been determined to satisfy the pleading requirements of the Federal Rules of Civil Procedure, Plaintiff's Motions to Appoint Counsel (Doc. 13; Doc. 22) will be denied.

I. Background

As set forth in the Magistrate Judge's R & R, Plaintiff Clarence Schreane, a prisoner proceeding pro se, filed this civil rights action on April 1, 2011. (Doc. 20.) After Magistrate Judge Blewitt initially screened the Complaint pursuant to the Prison Litigation Reform Act, the Court entered an Order, on November 15, 2011, granting Plaintiff twenty-one (21) days to file an amended complaint. (Doc. 18.) Plaintiff was informed that failure to file an amended complaint would result in the dismissal of his case. (Doc. 18.) Once the time expired for Plaintiff to file an amended complaint, Magistrate Judge Blewitt, sua sponte, gave Plaintiff an additional fourteen (14) days to file an amended complaint. On December 20, 2011, when Plaintiff had yet to file an amended complaint or request an extension of time to file an amended complaint, Magistrate Judge Blewitt issued the R & R recommending dismissal of Plaintiff's case without prejudice. (Doc. 20.)

Magistrate Judge Blewitt recommends dismissal of Plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b), which permits the dismissal of an action for failure of a plaintiff to prosecute or for failure to comply with an order of court. See Fed. R. Civ. P. 41(b). Magistrate Judge Blewitt determined that Plaintiff's failure to file an amended complaint constituted a willful failure to prosecute his action. (Doc. 20.) Additionally, Magistrate Judge Blewitt recommends dismissal of Plaintiff's case pursuant to the factors set forth in Poulis v. State Farm Fire & Cas. Co., 747 F.3d 863, 868 (3d Cir. 1984).

Although Plaintiff failed to file timely objections within fourteen (14) days to the Magistrate Judge's R & R, Plaintiff during this time period filed an Amended Complaint. (Doc. 21.) The introduction to Plaintiff's Amended Complaint indicates that Plaintiff perceived the Magistrate Judge's R & R as requiring the filing of an amended complaint in order to avoid dismissal of his case. (Doc. 21.) On the same day Plaintiff filed the Amended Complaint, Plaintiff also filed a Motion for the Appointment of Counsel. (Doc. 22.) Both the Magistrate Judge's R & R and Plaintiff's Motion for the Appointment of Counsel are ripe for disposition.

II. Discussion

A. Legal Standard in Reviewing a Report and Recommendation

Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir.1984) (emphasis added). In conducting a de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F.Supp. 736, 738 (M.D.Pa.1993). Although the review is de novo, the law permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F.Supp. 328, 330 (M.D.Pa.1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. 375, 376--77 (M.D.Pa.1998).

B. Dismissal for Failure to Prosecute

As set forth in Magistrate Judge Blewitt's R & R, an action may be dismissed when "the plaintiff fails to prosecute or to comply with these rules or a court order. . . ." Fed. R. Civ. P. 41(b). When determining whether to dismiss an action for a plaintiff's failure to prosecute under Rule 41(b), the district court must balance the six (6) factors set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984). These factors include:

(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.

Id. at 868.*fn1 Dismissal of the action in this case, however, must take into consideration Plaintiff's status as a pro se litigant. In particular, pro se filings "are to be construed liberally." Shipman v. Gelso, No. 3:11-CV-1162, 2012 WL 5554252, at *3 (M.D. Pa. Nov. 15, 2011); Richardson v. Deutsche Bank Trust. Co., No. 3:08-CV-1857, 2008 WL 5225824, at *3 (M.D. Pa. Dec. ...


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