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Ray v. Rogers

United States District Court, W.D. Pennsylvania

November 14, 2014

FREDERICK T. RAY, III, Plaintiff,
v.
JEFF ROGERS, Corrections Program Manager; DAVID MITCHELL, Captain; COI HARKLEROAD, Corrections Officer; COI STEPHENS, Corrections Officer; MICHAEL SMITH, Activities Mgr/PRC; DAVID GRAINEY, MAJOR OF GUARD; MARK CAPOZZA, Deputy of Services; F. NUNEZ, Hearing Examiner; GREG JOHNSON, Principal, Director of Educational Services-Member of PRC Misconduct Appeal Review; CARLA SWARTZ, Unit Manager PFC; R. DIETZ, Psychology Manager; LOUIS FOLINO, Superintendent; CAPTAIN DURCO, Shift Commander; CO1 McDONOUGH; CAPT. HAYWOOD, SECURITY OFFICE CAPTAIN; LT. SHRADER, Lieutenant of RHU; LT. MIEGHAN, Lieutenant; DORINA VARNER, Chief Grievance Officer; ROBERT MACINTYRE, Chief Hearing Examiner; LT. ARMSTRONG, Lieutenant, Security Office; DAN DAVIS, Grievance Coordinator; CAPT WALKER RHU CAPTAIN; LT. BARKEFELT, Lieutenant; CO1 MILLER, Hearing Officer, Defendants.

REPORT AND RECOMMENDATION

MAUREEN P. KELLY, Magistrate Judge.

I. RECOMMENDATION

Plaintiff Frederick T. Ray, III ("Plaintiff"), commenced this civil rights action on July 13, 2012, while he was an inmate in the custody of the Pennsylvania Department of Corrections. In his Amended Complaint, which was filed on February 20, 2013, Plaintiff alleges that Defendants violated his rights provided by the First and Fourteenth Amendments to the United States Constitution relative to grievances he filed and misconducts he received while he was incarcerated at the State Correctional Institution ("SCI") at Greene. ECF No. 15. Following the disposition of a Motion to Dismiss, only two Defendants - CO1 McDonough and Lt. Armstrong - remain in the case. See ECF Nos. 65, 67. For the reasons that follow, it is respectfully recommended that the Amended Complaint be dismissed against these Defendants as well due to Plaintiff's failure to prosecute.

II. REPORT

On April 14, 2014, Defendants CO1 McDonough and Lt. Armstrong filed a Motion to Revoke Plaintiff's In Forma Pauperis Status. ECF No. 73. Finding that in forma pauperis status had been incorrectly granted in the first instance, this Court issued an Order granting Defendants' Motion. ECF No. 83. The Court also directed Plaintiff to submit the remainder of the filing fee that was owed on or before June 17, 2014, or face dismissal of the case for failure to prosecute. Id.

On June 19, 2014, Plaintiff filed a Motion for Extension of Time to Pay Filing Fee, in which he represented that he was still indigent but had been offered employment upon his release from prison, which was to take place on September 17, 2014. ECF No. 91. Because of the length of the extension sought by Plaintiff, the Court treated Plaintiff's Motion for Extension of Time as a Motion to Stay the Case until Plaintiff was released from prison and gainfully employed. ECF No. 92. The Court then granted Plaintiff's Motion and directed that the case be stayed until October 17, 2014, at which time Plaintiff was ordered to pay the remainder of the filing fee owed and was advised that the case would be dismissed for failure to prosecute if he failed to do so. Id . To date, Plaintiff has failed to pay the remainder of the filing fee or given any other indication that he wishes to proceed with this action. Indeed, Plaintiff has also failed to notify the Court of his change of address following his release from prison.[1]

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, 1373 (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 alternative sanctions.
(6) The meritoriousness of the claim or defense.

Consideration of these factors suggests that the instant action ...


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