United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS [ECF NO. 24]
Richard A. Lanzillo, United States Magistrate Judge.
respectfully recommended that the Complaint [ECF No. 3] be
dismissed for a failure to prosecute and that Defendants'
Motion to Dismiss or in the Alternative for Summary Judgment
[ECF No. 24] be denied as moot.
Viktor Popa began this litigation on January 16, 2018, by
filing a Motion to Proceed in forma pauper is and a
proposed Complaint. ECF No. 1. The Court granted that motion
on January 17, 2019, and docketed his Complaint the same day.
ECF No. 2; ECF No. 3. Popa's Complaint alleges that
Defendants violated his right to be free from cruel and
unusual punishment under the Eighth Amendment and his right
to due process of law under the Fifth Amendment to the
Constitution. ECF No. 3, at 1, 4-5. Popa brought these claims
pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). This
matter was reassigned to the undersigned on September 24,
2018. ECF No. 19.
about October 29, 2018, the Defendants filed a Motion to
Dismiss or in the Alternative for Summary Judgment. ECF No.
24. This Court entered an order notifying Popa that a
Response was due on or before November 19, 2018. This
deadline passed without Popa filing a Response in opposition
to the Defendants' motion. An order to show cause as to
why Popa had not filed a Response was entered on January 22,
2019. ECF No. 29. This order instructed Popa that a Response
in opposition must be filed by February 4, 2019 and that his
failure to do so "will result in a recommendation that
this action be dismissed for failure to prosecute."
Id. To date, Popa has filed nothing in response to
Defendants' motion or the Court's show cause order.
Failure to Prosecute
Rule of Civil Procedure 41(b) allows the Court to sua sponte
dismiss an action where "the plaintiff fails to
prosecute or to comply with" the Federal Rules of Civil
Procedure and/or "a court order[.]" Fed.R.Civ.P.
41(b); see also Shields v. Comm'r of Soc. Sec,
474 Fed.Appx. 857, 858 (3d Cir. 2012) (noting that,
"[u]nder Federal Rule of Civil Procedure 41(b), a
district court may dismiss an action sua sponte if a
plaintiff fails to prosecute his case") (citing Link
v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)).
Dismissals, however, constitute "drastic sanctions,
termed 'extreme' by the Supreme Court, ... and are to
be reserved for [such] cases." Poulis v. State Farm
Fire & Cos. Co., 747 F.2d 863, 867-68 (3d Cir.
1984). In determining whether dismissal is proper, the Court
must ordinarily balance the six factors set forth in
Poulis. The Court need not, however, conduct a
balancing of the Poulis factors where, as here,
"a plaintiff refuses to proceed with his case or
otherwise makes adjudication of [the] case
impossible[.]" Abulkhair v. New Century Fin. Servs.,
Inc., 467 Fed.Appx. 151, 153 (3d Cir. 2012) (affirming
the district court's dismissal of plaintiff s complaint,
despite the fact that the court did not "appear to weigh
the Poulis factors"); see also Shipman v.
Delaware, 381 Fed.Appx. 162, 164 (3d Cir. 2010)
("when a litigant's conduct makes adjudication of
the case impossible," a Poulis balancing
Poulis six-factor balancing test identifies the
following considerations to guide a court in determining
whether dismissal of a case is appropriate: 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 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. Id. at 868. Not all of the six factors need
to weigh in favor of dismissal before dismissal is warranted.
Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988).
Indeed, "there is no 'magic formula' or
'mechanical calculation' for balancing the
Poulis factors, and a District Court need not find
all of the factors satisfied in order to dismiss a
complaint." See Briscoe v. Klaus, 538, F.3d
252, 263 (3d Cir. 2008). "No single  factor is
dispositive." Id. The decision to dismiss for
failure to prosecute is committed to the district court's
sound discretion. See Collinsgru v. Palmyra Bd. of
Educ, 161 F.3d 225, 230 (3d Cir. 1998) (reviewing the
district court's dismissal for failure to prosecute
pursuant for abuse of discretion), abrogated on other
grounds by Winhelman ex rel. Winkelman v. Parma City School
Dist., 550 U.S. 516 (2007).
applying the Poulis factors, each "must be
balanced in determining whether dismissal is an appropriate
sanction, although not all need to weigh in favor of
dismissal before dismissal is warranted." Ingram v.
Superintendent Lane, 2018 WL 4403484, *1 (W.D. Pa. Aug.
22, 2018) (citing Hicks, 850 F.2d at ...