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 Fourteenth
Amendment rights by placing him in a three-person cell. After
the court dismissed the complaint for failure to state a
claim, the court provided the plaintiff with a period of 30
days to file an amended complaint. The plaintiff did so, but
the court also dismissed that amended complaint for the
failure to state a claim, and gave the plaintiff a period of
another 30 days to file a second amended complaint. The court
also warned the plaintiff that if he failed to timely file a
second amended complaint, the court would dismiss this action
with prejudice. The plaintiff has failed to timely file a
second amended complaint.
stated further below, the plaintiff's failure to file a
second amended complaint 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). 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 a second amended
ALLEGATIONS AND PROCEDURAL HISTORY
pro se plaintiff, Raymond McCandless, filed an
application to proceed in forma pauperis and a
proposed complaint against the defendants, Michael Nutter,
the former mayor of Philadelphia, Louis Giorla, the former
commissioner of the Philadelphia Prison System, Michele
Farrell, the warden of Curran-Fromhold Correctional Facility
(“CFCF”), and Major Abello, the deputy warden of
CFCF, on March 26, 2015. Doc. No. 1. The Honorable Norma L.
Shapiro, now deceased, entered an order granting the
plaintiff leave to proceed in forma pauperis, and
the clerk of court docketed the complaint. Doc. Nos. 4, 5.
complaint, the plaintiff alleges that while he was a pretrial
detainee at CFCF, the defendants violated his Fourteenth
Amendment rights by forcing him into a three-person cell.
Complaint at 3. He also alleges that while at CFCF he lacked
access to legal materials, he was not provided clean sheets
or uniforms, and that treatment of pretrial detainees was
generally unconstitutional. Id. With regard to his
requested relief, the plaintiff seeks $300 for each day
during which he was housed in a triple cell, transfer to a
two-person cell, regular cell cleaning, and liberal use of
the law library. Id. at 5.
appears that the United States Marshals Service served the
summonses and copies of the complaint upon the defendants,
and the defendants filed a motion to dismiss the complaint on
August 1, 2016. Doc. No. 6. 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, Doc. No. 6. Also on August
1, 2016, Chief Judge Petrese B. Tucker reassigned this case,
along with 12 other cases, to the Honorable Mitchell S.
Goldberg. Doc. No. 7. Despite the passing of more than four
months, the plaintiff never filed a response to the motion to
dismiss. Chief Judge Tucker then reassigned the case from
Judge Goldberg to the undersigned on December 20, 2016. Doc.
December 22, 2016, the undersigned entered an order granting
the defendants' motion to dismiss and dismissing the
complaint without prejudice. Doc. No. 10. The court held that
the plaintiff had failed to state a claim because he failed
to allege that the defendants were personally involved in the
alleged constitutional violations or to present facts
demonstrating a policy, practice, or custom that resulted in
the deprivation of his constitutional rights. Id.
The court gave the plaintiff a period of thirty days to file
an amended complaint. Id.
December 29, 2016, the court received a returned envelope
from the United States Postal Service indicating that Chief
Judge Tucker's order reassigning the case to the
undersigned was undeliverable. Unnumbered Docket Entry
between Doc. Nos. 10 & 11. The notice also indicated that
the plaintiff had been discharged from CFCF and “sent
upstate.” In spite of his change in circumstances, the
plaintiff failed to fulfill his obligation of notifying the
clerk of court of his change of address in accordance with
Rule 5.1(B) of this court's Local Rules of Civil
Procedure. On January 6, 2017, the court used the
publicly-available inmate locater to determine that the
plaintiff had been transferred to the State Correctional
Institution at Albion (“SCI Albion”), directed
that the clerk of court send all filings to the plaintiff and
warden at SCI Albion, and provided the plaintiff thirty more
days to file an amended complaint. Doc. No. 11.
requesting an extension from the court, the plaintiff filed
an amended complaint on February 15, 2017. See Doc.
Nos. 12-14. While the defendants did not file a motion to
dismiss the amended complaint, the court dismissed it on
March 23, 2017, pursuant to 28 U.S.C. § 1915(e)(2)(B),
which requires that the court dismiss a complaint of a
litigant proceeding in forma pauperis if the
complaint fails to state a claim on which relief may be
granted. Doc. No. 15. Specifically, the amended complaint
suffered from the same deficiencies as the original
complaint. Id. The court again gave the plaintiff a
period of thirty days to file a second amended complaint, and
warned the plaintiff that the court would dismiss the action
with prejudice if he failed to file a second amended
complaint within the time set forth in the order.
Id. To date, the plaintiff has not filed a second
amended complaint or requested an extension of time from the
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). The court may also sua sponte dismiss an
action for lack of prosecution, in the absence of a motion to
dismiss, “in order to achieve the orderly and
expeditious disposition of cases.” Allen v.
American Fed'n of Gov't Emps., 317 F. App'x
180, 181 (3d Cir. 2009) (per curiam).
district courts in the Third Circuit must decide whether to
dismiss an action with prejudice for lack of prosecution by
evaluating the six factors set forth in Poulis v. State
Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.
1984). 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.”). The
plaintiff's failure to file an amended complaint,
however, warrants dismissal of this action for lack of
prosecution without considering the Poulis factors.
Allen, 317 F. App'x at 181 (“The refusal
to file an amended complaint, would have left the District
Court uncertain of the contours of Allen's claims. Under
these particular circumstances, we do not think it was error
that the District Court did not explicitly weigh the
the court were to analyze the plaintiff's failure to
prosecute under the Poulis factors, however,
dismissal would still be appropriate. In Poulis, the
Third Circuit set forth six factors for the court to consider
in determining whether to dismiss an action with prejudice
for the failure to prosecute. The six factors are: (1) the
extent of the party's personal responsibility; (2) the
extent of prejudice to the adversary; (3) 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 including an analysis ...