United States District Court, M.D. Pennsylvania
Matthew W. Brann United States District Judge.
Peterson initiated this pro se civil rights action
pursuant to 42 U.S.C. § 1983 regarding his confinement
at the Lackawanna County Prison, Scranton, Pennsylvania.
Named as Defendants are Catering by Marlins, Inc., a company
contracted to provide food service at the Lackawanna County
Prison together with two of its employees Food Service
Manager Ben O'Leary and Levi Castor. Also named as
Defendants are three employees of the Lackawanna County
Prison: Warden Tim Betti, Deputy Warden David Langan, and
Prison Rape Elimination Act (PREA) Coordinator Mari Finlon.
claims stem from his contention that he was subjected to
verbal and physical sexual harassment beginning in May 2015
by Levi Castor, a kitchen employee. Peterson states that he
reported the harassment on June 29, 2015 to Sergeant
Scwalinski and Defendant Finlon. Defendant Castor's
clearance to work in the prison was allegedly revoked later
that same day after he was seen touching another inmate in a
service of the original complaint, separate motions to
dismiss were filed by Defendants Betti, Langan and Finlon;
O'Leary; and Catering by Marlins. Plaintiff responded to
those motions with a motion seeking leave to submit an
amended complaint. Peterson's motion was not accompanied
by a proposed amended complaint.
February 13, 2018, this Court issued an Order addressing the
Defendants' respective motions and Peterson's request
to file an amended complaint. See Doc. 35. The Order
concluded that since pro se litigants must be
afforded liberal treatment and Peterson's amended
complaint could arguably cure any defects existing in the
original complaint, the unopposed motion to amend should be
was directed to file an amended complaint within twenty-one
(21) days which was limited to claims directly related to the
claims set forth in the original complaint; should state each
claim he wished to pursue in a clear and concise manner;
should identify all defendant[s]; and should specify the
relief sought. Finally the Order forewarned Plaintiff that
failure to submit an amended complaint or otherwise respond
to the Order within the relevant time period would result in
dismissal of his action for failure to prosecute. See
id., p. 5.
review of the docket shows that since entry of the February
13, 2018 Order, Peterson has failed to make any filings with
the Court. A copy of the Order mailed to Peterson has not
been returned as undeliverable. A proposed amended complaint
has not been submitted and Peterson has not requested
additional time in which to file an amended complaint.
Peterson has also not sought reconsideration of the February
13, 2018 Order.
plaintiff fails to prosecute or comply with a court order,
the court may dismiss the action, with prejudice. See
Poulis v. State Farm Fire and Casualty Co., 747 F.2d
863, 868 (3d Cir. 1984); Stackhouse v. Mazurkiewicz,
951 F.2d 29, 30 (3d Cir. 1991) (failure of a plaintiff to
comply with a court's specific direction to comply with a
local rule which required the filing of an opposing brief,
warranted the treatment of a motion to dismiss as being
unopposed and subject to dismissal without a merits
analysis). In a similar case, the United States Court of
Appeals for the Third Circuit recognized that a district
court “has the authority to dismiss a suit sua
sponte for failure to prosecute by virtue of its
inherent powers and Federal Rule of Civil Procedure
41(b)” when a litigant fails to comply with a court
order directing him to file an amended complaint. See
Azubuko v. Bell National Organization, 243
Fed.Appx. 728, 729 (3d Cir. 2007).
Third Circuit in Poulis set forth six (6) factors
which must be considered in determining whether to dismiss an
action with prejudice for failure to prosecute: (1) extent of
the party's personal involvement; (2) prejudice to the
opposing party by the dilatoriness; (3) whether a history of
dilatoriness existed; (4) whether the dilatoriness was
willful and in bad faith; (5) possible effectiveness of
alternative sanctions; and (6) the merit of the claim or
defense. See Adams v. Trustees, N.J. Brewery Trust
Fund, 29 F.3d 863 (3d Cir. 1994).
Azubuko, 243 Fed.Appx. at 729, recognizes a
“balancing under Poulis is unnecessary”
in cases such as the present matter where a litigant's
conduct makes adjudication of the case impossible, other
Third Circuit decisions indicate that the Poulis
analysis should be undertaken. See Hernandez v.
Palakovich, 293 Fed.Appx. 890, 894 (3d Cir. 2008)
(Poulis factors must be considered before dismissing
a case as a sanction for failure to follow a court order).
grounds have been established here for the extreme sanction
of dismissal. It is initially noted that even under the most
generous treatment given to Peterson's Original
Complaint, the arguments set forth in the Defendants'
respective motions to dismiss appear to be meritorious.
Second, it was Peterson himself who requested permission to
amend. Furthermore, although Peterson has been granted a
reasonable period of time, he failed to make any attempt to
submit an amended complaint as directed. Accordingly, a
finding of dilatoriness and willful conduct is warranted.
Other sanctions are not a viable alternative because this
matter simply cannot proceed without the filing of an
adequate amended complaint.
upon the present circumstances, dismissal of this action
without prejudice for failure to prosecute is warranted under