United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, Magistrate Judge.
For the reasons that follow, it is respectfully recommended that this action be dismissed for Plaintiff's failure to prosecute as he has failed to apprise this Court of his current address.
On May 27, 2015, the Court entered an Order directing the United States Marshal to serve the Complaint on Defendants by mail. In that same Order, Plaintiff was advised to immediately notify the Court of any change in address and informed that the failure to do so may result in dismissal for failure to prosecute. The Order was mailed to Plaintiff at his address of record, the Fayette County Prison, 12 Court Street, Uniontown, Pennsylvania, XXXXX-XXXX, but it was returned to the Court with a label stating "RETURN TO SENDER/REFUSED/UNABLE TO FORWARD". Upon inquiry, the Court was informed that Plaintiff was released from the custody of the Fayette County Prison without leaving a forwarding address. Plaintiff did not submit a notice of change of address and the Court is currently unaware of his whereabouts. Without this information, the defendants are unable to serve pleadings and other documents upon Plaintiff, and the Court is unable to serve him with orders.
A district court has inherent power to dismiss an action, sua sponte, under Federal Rule of Civil Procedure 41(b) for a plaintiff's failure to comply with an order of court. Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) ("The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b)."); Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). Furthermore, a court's decision to dismiss for failure to prosecute is committed to the court's sound discretion. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 230 (3d Cir. 1998) ("We review for abuse of discretion a district court's dismissal for failure to prosecute pursuant to Rule 41(b)."), abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007). In exercising that discretion, a district court should, to the extent applicable, consider the six factors identified in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 868 (3d Cir. 1984), when it levies the sanction of dismissal of an action for failure to obey discovery schedules, failure to prosecute, or to comply with other procedural rules. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995).
In Poulis, the Third Circuit Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper:
(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 (emphasis omitted). These factors must be balanced in determining whether dismissal is an appropriate sanction, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Consideration of these factors follows.
1. The extent of the party's personal responsibility.
Plaintiff is proceeding in this matter pro se . The responsibility for his failure to keep the Court informed of his current address is his alone.
2. Prejudice to the adversary.
In Poulis, prejudice was found to exist where the adversary was required to prepare and file motions to compel answers to interrogatories. In this case, the Complaint has not yet been ...