United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
E. Schwab Chief United States Magistrate Judge
this court is the civil rights action of pro se
plaintiff Jacob Ray Rivera (“Rivera”), who raises
claims pursuant to 42 U.S.C. § 1983 that concern his
receipt of inadequate medical care and his placement in
administrative segregation while incarcerated at SCI Camp
Hill. Rivera, who was paroled, has failed for several months
either to file an amended complaint or to update his address
with this court, suggesting that he has abandoned this
lawsuit. Because Rivera has not complied with this
court's order to show cause, we recommend that the Court
dismiss his case pursuant to Fed.R.Civ.P. 41(b) for failure
Background and Procedural History.
February 20, 2013, Rivera filed this 42 U.S.C. § 1983
complaint pro se in the Eastern District of
Pennsylvania. Doc. 17. His case was transferred to
the Middle District by order on May 20, 2013. Doc.
7. We issued a Standing Practice Order on May 22, 2013,
that notified Rivera of his “affirmative obligation to
keep the Court informed of his . . . current address”
and of the possibility that should he fail to keep this court
informed he would be deemed to have abandoned the lawsuit.
Doc. 9. We granted Rivera's motion to proceed
in forma pauperis on January 7, 2015. See docs
complaint named defendant P.A. Diebert
(“Diebert”) and a group of defendants from the
Department of Corrections (“DOC defendants”).
Doc 17. Both the DOC defendants and Diebert filed
motions to dismiss and supporting briefs. See docs.
29, 30, 36, 37. Rivera filed
his brief in opposition on November 27, 2015. Doc.
39. We then issued a report and recommendation that
Diebert's motion to dismiss be denied in part and granted
in part. Doc. 41 at 18. Further, this court
recommended that the DOC defendants' motion to dismiss be
granted. Id. Finally, we recommended that Rivera be
granted leave to amend his complaint as to Diebert.
Id. The Court adopted our report and recommendation
through a Memorandum and Order dated September 12, 2016.
See docs. 42, 43.
April 27, 2017, we ordered Rivera to file an amended
complaint on or before May 24, 2017. Doc. 52.
Rivera's last filing with this court was a motion for an
extension of time and for court-appointed counsel on May 15,
2017. Doc. 53. We denied Rivera's motion for
court-appointed counsel but granted Rivera's motion for
an extension of time on June 2, 2017. Doc. 54.
Rivera's copy of the order, however, was returned as
undeliverable on August 4, 2017. Doc. 55.
Annotations to the returned mail suggest that Rivera had been
paroled but did not provide a forwarding address.
Id. After waiting two months for updated information
from Rivera, we issued an order on October 4, 2017 to show
cause why Rivera's case should not be dismissed for
failure to prosecute. Doc. 56. Rivera's copy of
the order was also returned as undeliverable. Doc.
has not contacted this court in over eight months, and has
not provided us with an avenue for contacting him because he
has not left a forwarding address. Under these circumstances
his case should be dismissed. The Federal Rules of Civil
Procedure provide that an action may be involuntarily
dismissed, “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order.” Fed.R.Civ.P.
41(b). In determining whether to dismiss a case as a sanction
for plaintiff's failure to prosecute, a district court of
the Third Circuit must weigh the six factors of the
Poulis balancing test:
(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 and 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). No single factor is dispositive,
Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008),
and each factor need not be satisfied for the court to
dismiss an action, Ware v. Rodale Press,
Inc., 322 F.3d 218, 221 (3d Cir. 2003). A weighing of
the six Poulis factors suggests that Rivera's
case should be dismissed.
first Poulis factor is the extent of the party's
personal responsibility. This factor weighs in favor of
dismissal because Rivera is personally responsible for his
failure to comply with both Local Rule 83.18 and this
court's Standing Practice Order (doc. 9). Local
Rule 83.18 provides that unrepresented parties “shall
maintain on file with the clerk a current address at which
all notices and copies of pleadings, motions or papers in the
action may be served . . . .” This court's Standing
Practice Order of May 22, 2013, further provides:
A pro se plaintiff has the affirmative obligation to keep the
court informed of his or her current address. If the
plaintiff changes his or her address while this lawsuit is
being litigated, the plaintiff shall immediately inform the
court of the change, in writing. If the court is unable to
communicate with the plaintiff because the plaintiff has
failed to notify ...