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Rivera v. City of Philadelphia

United States District Court, Third Circuit

July 16, 2013

JULIO RIVERA, Plaintiff,
v.
CITY OF PHILADELPHIA, et al., Defendants.

MEMORANDUM

Berle M. Schiller, J.

Julio Rivera, a pro se plaintiff, sued the City of Philadelphia, Officer Joseph E. O’Malley, and five other unnamed Defendants who work in the 26th District Police Department. Since the Rule 16 conference on October 3, 2012, Rivera has failed to respond to Defendants’ discovery request, attend his deposition, oppose Defendants’ motion to dismiss, and respond to the Court’s Order to Show Cause why his action should not be dismissed. Furthermore, Rivera has made no attempt to contact the Court in any way. Before the Court is the City of Philadelphia and Officer O’Malley’s motion to dismiss for failure to prosecute. For the following reasons, the motion to dismiss is granted as to all Defendants, both named and unnamed.

I. BACKGROUND

Rivera’s action arises out of an incident that took place on June 13, 2010, [1] in which Officer O’Malley and several other unidentified police officers approached Rivera on a public sidewalk and allegedly hit him and shoved him to the ground, causing him serious injury. (Compl. ¶¶ 21, 26.) As a result, Rivera brought this § 1983 claim for violation of his First, Fourth, and Fourteenth Amendment rights, in addition to a Monell claim and state law claims for assault and battery, false imprisonment, and intentional infliction of emotional distress.

The Court conducted a Rule 16 conference on October 3, 2012. (ECF Document No. 8.) On October 15, 2012, Rivera’s then-counsel moved to withdraw in response to a letter from Rivera requesting that the attorney terminate his representation. (ECF Document No. 10.) The Court granted the motion the same day and stayed the litigation for ninety days to allow Rivera to obtain a new attorney. (ECF Document No. 11.) On March 6, 2013, the Court lifted the stay and issued a Scheduling Order with a deadline of June 20, 2013 for fact discovery. (ECF Document No. 13.)

In an attempt to set up depositions and a discovery plan, counsel for Defendants contacted Rivera by U.S. Mail on March 27, 2013; defense counsel received no response of any kind. (Defs.’ Mot. to Dismiss at 3.) On April 8, 2013, defense counsel telephoned Rivera, who said he would be represented by a law firm, but no appearance has been entered on his behalf to date. (Id.)

On May 8, 2013, defense counsel sent a notice of deposition to Rivera’s residence. (Id. Ex. B [Notice of Deposition].) Yet on May 21, 2013, the day of the deposition, he failed to appear and never contacted the Court or defense counsel. (Defs.’ Mot. to Dismiss at 3.) Defense counsel later called Rivera, but his phone number was no longer in service, and all subsequent attempts to contact Rivera have been unsuccessful. (Id.) Pursuant to Federal Rule of Civil Procedure 41(b), Defendants filed a motion to dismiss for failure to prosecute on May 29, 2013. Rivera’s time to respond elapsed, and he filed nothing. On July 1, 2013, the Court ordered Rivera to show cause why his action should not be dismissed for failure to prosecute by July 15, 2013. (ECF Document No. 15.) He again failed to file anything.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 41(b) provides that an action may be dismissed if a plaintiff “fails to prosecute or to comply with these rules or a court order.” The power of the court to dismiss for failure to prosecute is inherent and necessary to prevent undue delays in the disposition of cases and to avoid docket congestion. Grogan v. Deb Shops, Inc., Civ. A. No. 93-3255, 1993 WL 465382, at *1 (E.D. Pa. Nov. 12, 1993) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962)). Such dismissal is a “drastic sanction and should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982).

Prior to granting a motion to dismiss for failure to prosecute, a court typically must undertake a Poulis analysis, which requires consideration of six factors. Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). However, the “impossibility exception” allows a court to dismiss a case without weighing the Poulis factors when a plaintiff has no intention of furthering the case. See Guyer v. Beard, 907 F.2d 1424, 1430 (3d Cir. 1990).

While pro se parties receive some leeway from the court, they cannot disregard court-imposed obligations. Grogan, 1993 WL 465382, at *1 (citation omitted); see also Grosso v. Lublin, Civ. A. No. 91-361, 1991 WL 160978, at *1 (E.D. Pa. Aug. 15, 1991).

III. DISCUSSION

The six Poulis factors that a court must consider are: (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 was willful or in bad faith; (5) the effectiveness of ...


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