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Bush v. Lackawanna County Prison

United States District Court, M.D. Pennsylvania

June 7, 2017

GREGORY BUSH, Plaintiff
v.
LACKAWANNA COUNTY PRISON, et al., Defendants

          MEMORANDUM

          Robert D. Mariani Judge.

         Plaintiff Gregory Bush ("Bush"), a former inmate confined at the Lackawanna County Prison, in Scranton, Pennsylvania, filed the above-captioned action pursuant to 42 U.S.C. § 1983. (Doc. 1). The matter is proceeding via an amended complaint. (Doc. 21). Named as Defendants are Robert McMillan, warden; Leonard Bogart, administrative officer; and Benjamin O'Leary, head of the food service department. (Id. at p. 2). By order dated October 15, 2015, Defendant O'Leary was dismissed as a party to this action. (Doc. 31). Consequently, the only remaining Defendants are McMillan and Bogart.

         Presently before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 41(b) and Middle District of Pennsylvania Local Rule 83.3.1. (Doc. 50). For the reasons set forth below, the Court will grant the motion to dismiss and this action will be dismissed for failure to prosecute and failure to comply with a Court order.

         I. Background

         In the amended complaint, Bush alleges that Defendants violated his right to practice his Nation of Islam religion while confined at the Lackawanna County Prison. (Doc. 21). Specifically, Bush alleges that his constitutional right of freedom of religion was violated by the failure to have Muslim religious services conducted by a cleric affiliated with the Nation of Islam.[1] (Id.).

         On September 28, 2016, Bush filed a notice with the Court, stating that he had been released from prison and requested that the Court forward any mail to him in care of his sister, Candice Bush, at 1041 Bushwick Avenue, Apt. 6-D, Brooklyn, NY 11221. (Doc. 45).

         On October 20, 2016, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 48). Defense counsel served Bush with the motion by first class mail, at the above-referenced address. The mail was returned, unopened, as undeliverable, and marked as "attempted not known/unknown address/unable to forward/return to sender." (Doc. 50-2).

         On November 30, 2016, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 41(b) and Middle District of Pennsylvania Local Rule 83.3.1. (Doc. 50).

         On February 24, 2017, the Court ordered Bush to file briefs in opposition to Defendants' motions to dismiss. (Doc. 52). The order warned Bush that, "[f]ailure to comply with this order may result in the granting of the motion to dismiss or dismissal of this case for failure to prosecute." (Id. at ¶ 2) (citing Federal Rule of Civil Procedure 41(b)). Bush failed to reply. Bush has not communicated with the Court since he filed the notice of change of address on September 28, 2016, and has not provided any further updated address.

         II. Discussion

         District courts have the inherent power to dismiss an action for failure to prosecute sua sponte. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). The United States Court of Appeals for the Third Circuit has identified six (6) factors a court should consider before dismissing an action for failure to prosecute:

(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.

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphases omitted). Not all of the Poulis factors need be satisfied to dismiss a complaint. See Shahin v. Delaware, 345 F.App'x 815, 817 (3d Cir. 2009) (citing Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).

         A, Analysis of ...


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