United States District Court, E.D. Pennsylvania
G. SMITH, J.
pro se plaintiff was an inmate in the City of
Philadelphia Prison System when he commenced this action
claiming that the defendants violated his Eighth Amendment
rights when they periodically placed him in a three-person
cell and required him to sleep in a “boat” on the
floor. After the court dismissed the complaint for the
failure to state a claim, the court provided the plaintiff
with a period of 30 days to file an amended complaint.
Despite the passage of a few months since the court granted
the plaintiff leave to file an amended complaint, he has
failed to file an amended complaint.
defendants move to have the court dismiss the action for lack
of prosecution. They apparently attempted to serve the
plaintiff with the motion only to discover that he is no
longer incarcerated and they have no manner to contact him.
The plaintiff has not notified the court that he has changed
stated further below, the plaintiff's failure to notify
the court of his change of address would, in itself, warrant
dismissal of this action without prejudice without
considering the factors set forth in Poulis v. State Farm
Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984) to
govern motions to dismiss for failure to prosecute.
Nonetheless, even if the court were to consider the
Poulis factors, the court would still dismiss the
action for failure to prosecute because it is the only
appropriate sanction for the plaintiff's failure to file
an amended complaint or to update his address in this case.
ALLEGATIONS AND PROCEDURAL HISTORY
pro se plaintiff, Michael Crews, filed an
application to proceed in forma pauperis and a
proposed complaint against the defendants, Commissioner
Michael Resnick, Mayor Nutter, and Mayor Kenney, on February
23, 2016. Doc. No. 1. The Honorable Norma L.
Shapiro, now deceased, entered an order (1) denying without
prejudice the application to proceed in forma
pauperis because the plaintiff failed to file a
certified copy of his prisoner account statement for the
six-month period preceding the filing of the complaint, and
(2) requiring the plaintiff to either pay the filing and
administrative fees or supply the court with the certified
prisoner account statement within 30 days of the court's
order. Doc. No. 2. In response to this order, the plaintiff
provided the court with a copy of his prisoner account
statement that the clerk of court docketed on March 28, 2016.
Doc. No. 4. On the same date, the plaintiff also filed a
notice of change of address indicating that prison officials
were transferring him from one Philadelphia jail, the Curran
Fromhold Correctional Facility (“CFCF”), to
another Philadelphia jail, the Philadelphia Industrial
Correctional Center (“PICC”). Doc. No. 3.
receipt of the plaintiff's account statement, Judge
Shapiro granted his application to proceed in forma
pauperis on April 5, 2016, and the clerk of court
subsequently docketed the complaint. Doc. Nos. 5, 6. In the
complaint, the plaintiff alleges that his Eighth Amendment
rights were violated when, starting on March 16, 2015, he was
housed in a three-person cell at the CFCF and was sleeping in
a “boat” on the floor. Complaint at ECF p.
It appears that the plaintiff had to sleep on the boat in the
three-person cell every other month from March 2015 through
February 2016. Id. at ECF pp. 2-3. The plaintiff
also alleges that he suffers from back pain due to a prior
car accident and sleeping on the boat made it harder for him
to sleep. Id. at ECF p. 3. The plaintiff
states that he has grieved the issue of him sleeping on the
boat in the three-person cell, but nothing has come of his
grievances. Id. at ECF p. 4. With regard to his
requested relief, the plaintiff seeks $10, 000 for his pain
and suffering and a transfer to a two-person cell.
Id. at ECF p. 5.
appears that the United States Marshal's Service served
the summonses and copies of the complaint upon the
defendants, and the defendants later filed a motion to
dismiss the complaint on July 11, 2016. Doc. No. 7. In the
motion to dismiss, the defendants generally contended that
the court should dismiss the complaint because the plaintiff
failed to allege that they were personally involved in the
alleged wrongs. Memorandum of Law in Supp. of Defs.' Mot.
to Dismiss for Failure to State a Claim at 1-3. The plaintiff
never filed a response to the motion to dismiss.
August 1, 2016, Chief Judge Petrese B. Tucker reassigned this
case, along with 12 other cases, to the Honorable Mitchell S.
Goldberg. Doc. No. 9. Judge Goldberg then entered a
memorandum opinion and order on November 30, 2016, in which
the court dismissed the complaint without prejudice because
(1) the plaintiff's allegations “do not show that
Crews's basic needs were not met or that unnecessary pain
was inflicted sufficient to prove a violation of the Eighth
Amendment[, ]” (2) the complaint did not provide
sufficient facts to “assess the totality of the
circumstances of the prison conditions Crews
experienced” so the court could determine if the
“conditions were intended to punish or were not
rationally related to a legitimate government purpose,
” (3) the plaintiff failed to allege “sufficient
facts to establish that any of the supervisor defendants were
personally involved in a constitutional violation[, ]”
and (4) “[t]he complaint does not allege a policy of
housing inmates in overcrowded cells.” Memorandum Op. at
4-6, Doc. No. 10. Because it was “conceivable”
that the plaintiff could cure the aforementioned deficiencies
in the complaint, Judge Goldberg granted the plaintiff leave
until December 30, 2016, to file an amended complaint.
Id. at 6-7; Order, Doc. No. 11.
to the expiration of the period for the plaintiff to file an
amended complaint, Chief Judge Tucker reassigned the case
from Judge Goldberg to the undersigned. Doc. No. 12. The
plaintiff did not file an amended complaint on or before
December 30, 2016, and the defendants filed the instant
motion to have the court dismiss the action for lack of
prosecution on February 13, 2017. Doc. No. 13. To date, the
plaintiff has not filed an amended complaint and he has not
responded to the motion to dismiss. Regarding the
plaintiff's lack of response to the motion to dismiss,
the defendants sent a letter to the court in which they
indicate that they attempted to serve the motion upon the
plaintiff at his address in the prison, but they were unable
to do so because he is no longer incarcerated. Doc. No. 14.
41(b) of the Federal Rules of Civil Procedure provides that
“[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.”
Fed.R.Civ.P. 41(b). In the instant motion to dismiss, the
defendants assert that the court should dismiss the action
for lack of prosecution because the plaintiff has failed to
file an amended complaint as ordered by the court and an
analysis of the factors set forth in Poulis v. State Farm
Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984)
supports dismissing this action with prejudice. See
Memorandum of Law in Supp. of Mot. to Dismiss for Lack of
Prosecution (“Defs.' Mem.”) at 1-3, Doc. No.
discussed in more detail below, the court need not even
consider the Poulis factors before finding that
dismissal is appropriate here because it appears that the
plaintiff has changed his address after leaving the
Philadelphia Prison System and has not updated his address
with the clerk of court. Nonetheless, the court would find
that dismissal is appropriate even if the court considered
the Poulis factors.
regard to the plaintiff's failure to notify the court of
his address change, the court, upon receiving notice from the
defendants that they were unable to serve the plaintiff
because he was no longer incarcerated in the Philadelphia
Prison System, conducted a review of the publicly-available
information to attempt to confirm whether he was still
incarcerated. In this regard, the court attempted to locate
the plaintiff by using the City of Philadelphia Prison
System's online inmate locator, but could not locate
The court also attempted to locate the plaintiff through the
Commonwealth of Pennsylvania, Department of Corrections'
online inmate locator and could not locate him. As a final
measure, the court attempted to discover the status of the
plaintiff's criminal matter in the Court of Common Pleas
of Philadelphia County. While this is by no means an
indisputable finding because the court is unaware of the
plaintiff's date of birth, it appears that there was only
one individual with the plaintiff's name who had a
criminal matter pending in the Court of Common Pleas of
Philadelphia County during the time period of the
plaintiff's incarceration set forth in the
complaint. This criminal action was docketed at No.
CP-51-CR-8869-2012. It appears that this matter concluded
with a jury trial in which the jury found the defendant not
guilty of all charges on January 24, 2017.
appears that the plaintiff is no longer incarcerated and has
changed his address, he was obligated to file a notice of
change of address with the court. See E.D. Pa. Loc.
Civ. R. 5.1(b) (“Any party who appears pro se shall
file with the party's appearance or with the party's
initial pleading, an address where notices and papers can be
served. Said party shall notify the Clerk within fourteen
(14) days of any change of address.”). The plaintiff
was apparently aware of this requirement because he filed a
notice of change of address in March 2016 after his transfer
between prisons. Doc. No. 3.
district courts in the Third Circuit must analyze motions to
dismiss for lack of prosecution by evaluating the six factors
set forth in Poulis. See Spain v. Gallegos,
26 F.3d 439, 454-55 (3d Cir. 1994) (“Ordinarily, when a
court is determining sua sponte or upon motion of a
defendant whether to dismiss because of a plaintiff's
failure to prosecute” the court must consider the
Poulis factors); see also McLaren v. New Jersey
Dep't of Educ., 462 F. App'x 148, 149 (3d Cir.
2012) (per curiam) (“Typically, district courts are
required to evaluate the factors set forth by
[Poulis] to determine whether dismissal is
appropriate.”). “However, when a litigant's
conduct makes adjudication of ...