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Jones v. City of Philadelphia

United States District Court, E.D. Pennsylvania

March 1, 2017

KEVIN RANDALL JONES Plaintiff-pro se



         By 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.


         On September 9, 2015, Plaintiff filed an application to proceed in forma pauperis, (the “IFP Application”).[1] [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”).[2] 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].

         Thereafter, 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.


         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.” 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.

         The 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.


         As 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.

         1. Extent of Plaintiff's Responsibility

         Because 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.

         2. Prejudice to Defendant

         Prejudice 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 ...

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