United States District Court, M.D. Pennsylvania
JULIO E. RIVERA ILARRAZA, Plaintiff,
JAMES CHUTA, Defendants.
REPORT AND RECOMMENDATION
F. SAPORITO, JR. U.S. Magistrate Judge
a pro se prisoner civil rights action which is
before the court on a motion to dismiss for failure to
prosecute (Doc. 41) filed by the defendant, James Chuta. For
the reasons that follow, it is recommended that the motion be
Statement of the Case
December 7, 2015, the plaintiff, Julio Rivera-Ilarraza,
commenced this action under 42 U.S.C. Â§1983 alleging that
prison officials at SCI Mahanoy violated his constitutional
rights by denying him the right to take part in Native
American religious services and by failing to provide him
with an interpreter to learn more about his Native American
religion. Also, he claims he was prevented from growing his
hair long. Ilarraza claims to be an ethnic Native American
who identifies as a female, although he is biologically a
February 10, 2017, we recommended that Chuta's motion to
dismiss for failure to state a claim under Fed.R.Civ.P.
12(b)(6) (Doc. 16) be granted in part and denied in part. Our
report recommended that only Ilarraza's First Amendment
claim survived the motion to dismiss. (Doc. 31). Our report
and recommendation was adopted by the court on April 3, 2017.
pending before us is Chuta's motion to dismiss (Doc. 41)
the plaintiff's surviving claim on the ground that
Ilarraza failed to prosecute his case now that he has been
released from prison and his address of record is incorrect
or inaccurate. (Doc. 41). It appears that Ilarraza has not
received filings at this last known address as the docket
reflects that the mailed documents have been returned as
undeliverable or “paroled.” (Doc. 33; Doc. 36;
Doc. 37; Doc. 40; Doc. 44; Doc. 47). For the reasons set
forth herein, we recommend that the motion to dismiss be
Fed.R.Civ.P. 41(b), a court may dismiss an action
“[f]or failure of the plaintiff to prosecute or to
comply with [the Federal Rules] or any order of
court....” 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 Philadelphia, 47 F.3d 1311, 1330
(3d Cir. 1995).
following six factors determine whether dismissal is
warranted: (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 was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which
entails an analysis of other 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); see also Emerson v. Thiel Coll., 296 F.3d
184, 190 (3d Cir. 2002); Huertas v. U.S. Dep't of
Educ., 408 Fed. App'x. 639 (3d Cir. 2010). The court
must balance the factors and need not find that all of them
weigh against plaintiff to dismiss the action.
Emerson, 296 F.3d at 190. Because dismissal for
failure to prosecute involves a factual inquiry, it can be
appropriate even if some of the Poulis factors are
not satisfied. Hicks v. Feeney, 850 F.2d 152, 156
(3d Cir. 1988); Curtis T. Bedwell & Sons, Inc. v.
Intl. Fid. Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988)
(holding that not all Poulis factors must weigh in
favor of dismissal).
that the Poulis factors warrant dismissal of
plaintiff's case. First, as a pro se litigant,
Ilarraza is solely responsible for prosecuting his claim.
Hoxworth v. Blinder, Robinson & Co., 980 F.2d
912, 920 (3d Cir. 1992). Second, Chuta is prejudiced by
Ilarraza's failure to prosecute. Prejudice occurs when a
plaintiff's failure to prosecute burdens a
defendant's ability to prepare for trial. Ware v.
Rodale Press, Inc., 322 F.3d 218, 222-23 (3d Cir.2003).
Chuta is faced with excessive and possible irremedial burdens
or costs due to Ilarraza's delay in resolving the issue
in this matter. On May 24, 2017, Chuta filed a motion to
extend the discovery deadline. (Doc. 38). In that motion,
Chuta sought additional time to depose Ilarraza and to allow
counsel more time to determine his whereabouts. The motion
further alleged that the delay was caused by Ilarraza because
of his failure to leave an accurate address and his failure
to update his address on the docket. We granted the motion
and extended discovery until July 24, 2017. (Doc. 39).
Despite the attempts by Chuta's counsel to depose
Ilarraza, not knowing Ilarraza's whereabouts precludes
Chuta from discovery. On August 24, 2017, we granted
Chuta's motion to extend the dispositive motions
deadline. (Doc. 45; Doc. 46). Thus, this factor favors Chuta.
regard to the third factor, the court notes that, early on,
Ilarraza participated in the case while an inmate. However,
upon his release from prison, he has not moved the case
forward, he did not leave an accurate address for counsel and
the court to contact him, and he has made no other filing
since May 20, 2016, when he filed his brief in opposition to
Chuta's first motion to dismiss. (Doc. 30). This leads to
the conclusion that, as to the third factor, there is now a
history of dilatoriness. This factor favors Chuta.
the fourth factor, the facts to date lead to a conclusion
that at this point, Ilarraza's failure to prosecute is
willful or in bad faith. He filed this lawsuit, yet failed to
keep the court and opposing counsel apprised of his current
address. For this reason, we find Ilarraza's actions to
be willful and in bad faith. See Williams v. Cambridge
Integrated Serv. Grp., 235 Fed. App'x 870, 872 (3d
Cir. 2007) (plaintiff's failure to update his address of
record and his delay of over five months to inquire about his
case was not excusable neglect); Books v. Hastings,