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Roberto Viera v. Superintendent Wenerowicz

August 22, 2012

ROBERTO VIERA, PLAINTIFF,
v.
SUPERINTENDENT WENEROWICZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

On August 18, 2010, Plaintiff Roberto Viera ("Plaintiff" or "Viera") initiated the above action pro se by filing a Complaint raising civil rights claims under 42 U.S.C. § 1983 as well as state law tort claims for intentional infliction of emotional distress and negligence, based upon his allegations that he received inadequate medical care while he was confined at the Frackville State Correctional Institution ("SCI Frackville") in Frackville, Pennsylvania. (Doc. 1.) For the reasons set forth below, this action will be deemed abandoned and dismissed for failure to prosecute.

I. RELEVANT PROCEDURAL BACKGROUND

By Order dated July 17, 2012, we referred this matter to Joseph Barrett, Esquire, the Director of the Court's Alternative Dispute Resolution ("ADR") Program, to conduct a mediation as to the remaining claims against the sole remaining Defendant, Corrections Officer Robin Hopkins. (Doc. 41.) Both our July 17 Order, and our July 12, 2012 Order granting summary judgment in favor of Defendants Bly and Long, and denying summary judgment as to Defendant Hopkins, were mailed to Plaintiff's address of record at SCI Frackville. However, both Orders were returned in the mail as undeliverable with a notation that Viera was paroled. (See Docs. 42, 43.) Upon the return of our July 12 Order, the Court contacted SCI Frackville and confirmed that Viera had been released on parole on April 9, 2012 and had left a forwarding address. The Court updated the docket with Viera's forwarding address and re-mailed the July 12 and July 17 Orders to Viera at that address.

On August 15, 2012, ADR Coordinator Barrett mailed a letter to Viera at the forwarding address that had been entered on the docket attempting to schedule a mediation in September. (Doc. 44.) On August 21, 2012, the letter was returned in the mail as undeliverable with the notations "Attempted Not Known" and "Unable to Forward." (Doc. 45.)

The Standing Practice Order issued in this case on August 31, 2011 provides, in relevant part, as follows:

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. 21 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); Hewlitt v. Davis, 844 F.2d 109, 114 (3d Cir. 1998) (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 (6) 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., 322 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 the Court's Standing Practice Order, a pro se plaintiff has the obligation to inform the court of address changes. (See Doc. 21 at 4.) As set forth above, it is apparent that, even though Viera was released on parole on April 9, 2012, he has failed to contact this Court with an updated address in the ensuing four (4) months. Moreover, it is apparent from the return of ADR Coordinator Barrett's August 15 letter that Viera no longer is at the forwarding address that he provided to SCI Frackville officials upon his release on parole, yet he still has not contacted this Court with his current address. Because Viera has ...


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