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Popa v. Bureau of Prisons

United States District Court, W.D. Pennsylvania

April 4, 2019

VIKTOR POPA, Plaintiff
v.
BUREAU OF PRISONS, NORTHEAST REGIONAL OFFICE CENTRAL OFFICE, Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS [ECF NO. 24]

          Richard A. Lanzillo, United States Magistrate Judge.

         I. Recommendation.

         It is 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.

         II. Report.

         A. Background

         Plaintiff 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.

         On or 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.

         B. Legal Standards

         1. Failure to Prosecute

         Federal 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 "is unnecessary").

         The 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).

         C. Discussion

         When 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 ...


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