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Rivera v. Diebert

United States District Court, M.D. Pennsylvania

February 5, 2018

JACOB JAY RIVERA, Plaintiff,
v.
P. A. DIEBERT, Defendant.

          Mannion Judge

          REPORT AND RECOMMENDATION

          Susan E. Schwab Chief United States Magistrate Judge

         I. Introduction.

         Before 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 to prosecute.

         II. Background and Procedural History.

         On 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 13, 14.

         Rivera's 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.

         On 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. 57.

         III. Discussion.

         Rivera 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.

         The 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 ...

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