United States District Court, E.D. Pennsylvania
MEMORANDUM OPINION INTRODUCTION
I. QUIÑONES ALEJANDRO, J.
Order dated January 13, 2017, Plaintiff Kevin Randall Jones
(“Plaintiff”), acting pro se, was
ordered to file by January 31, 2017, a response to
Defendant's motion to dismiss. [ECF 11]. The
Order also advised Plaintiff that the failure to comply with
the Order could result in a dismissal of this matter for
failure to prosecute. (Id.). As of the date of this
Memorandum Opinion, Plaintiff has not responded to that
Order. Consequently, after carefully considering and weighing
the factors set forth in Poulis v. State Farm Fire &
Casualty Co., 747 F.2d 863 (3d Cir. 1984), this matter
is dismissed for failure to prosecute.
September 9, 2015, Plaintiff filed an application to proceed
in forma pauperis, (the “IFP
Application”). [ECF 1]. By Order dated September 30,
2015, [ECF 2], Plaintiff's IFP Application was granted,
and his complaint was dismissed, without prejudice, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a
claim against Defendant Philadelphia Prison Systems
(“PPS”). On October 29, 2015, Plaintiff filed an
amended complaint against the City of Philadelphia
(“Defendant”), [ECF 4], which was served onto
Defendant on June 6, 2016. [ECF 7]. On August 8, 2016,
Defendant filed a motion to dismiss. [ECF 8].
no other docket entry or activity ensued. On January 13,
2017, this Court issued a Rule to Show Cause directing
Plaintiff to, inter alia, show cause why his case
should not be dismissed for his failure to prosecute; and was
advised that if he did not respond by January 31, 2017, his
case could be dismissed for lack of prosecution. [ECF 11].
Plaintiff did not respond to this Order.
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.” Fed.R.Civ.P.
41(b). Although dismissal is an extreme sanction that should
only be used in limited circumstances, dismissal is
appropriate if a party fails to prosecute the action.
Harris v. City of Phila., 74 F.3d 1311, 1330 (3d
Cir. 1995). Because of the extreme nature of such a sanction,
the Third Circuit Court of Appeals in Poulis v. State
Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984),
instructed district courts to apply a six-factor balancing
test to determine whether the entry of such a dismissal order
is appropriate. Id. at 867-68.
Poulis factors require district courts to consider:
(1) the extent of the party's personal responsibility;
(2) the prejudice to the adversary; (3) whether the party has
a history of dilatoriness; (4) whether the conduct of the
party was willful or in bad faith; (5) the effectiveness of
sanctions other than dismissal; and (6) the meritoriousness
of the claim. Id. at 868. However, not all of the
factors need weigh in favor of entering the dismissal order
against a plaintiff nor need be satisfied. See Briscoe v.
Klaus, 538 F.3d 252, 263 (3d Cir. 2008) (“While no
single Poulis factor is dispositive, we have also
made it clear that not all of the Poulis factors
need be satisfied in order to dismiss a complaint.”);
C.T. Bedwell & Sons, Inc. v. Int'l. Fidelity Ins.
Co., 843 F.2d 683, 696 (3d Cir. 1988) (noting that the
district court did not abuse its discretion where five
Poulis factors favored dismissal). The decision to
enter a dismissal order is within the district court's
discretion. Poulis, 747 F.2d at 868.
noted, it is within this Court's discretion to dismiss
this case for failure to prosecute should the review and
balancing of the Poulis factors warrant such a
ruling. Therefore, this Court will briefly consider each
factor to determine whether this matter should be dismissed
for Plaintiff's failure to prosecute.
Extent of Plaintiff's
Plaintiff is proceeding pro se, he alone is
responsible for his failure to comply with this Court's
orders. See Briscoe v. Klaus, 538 F.3d 252, 258 (3d
Cir. 2006). His failures to comply with this Court's
orders cannot be attributed to any counsel or other party.
Thus, this factor weighs in favor of dismissal.
Prejudice to Defendant
occurs when a plaintiff's failure to prosecute burdens a
defendant's ability to defend against a case and/or
prepare for trial. Ware v. Roadle Press, Inc., 322
F.3d 218, 222-23 (3d Cir. 2003). Since filing his amended
complaint on October 29, 2015, Plaintiff has not done
anything to prosecute his case. Plaintiff failed to respond
to Defendant's motion to dismiss and to this
Court's January 13, 2017 Order. Plaintiff's lack of
interest in moving forward with this matter has prevented