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Bowie v. Perry

United States District Court, W.D. Pennsylvania

May 13, 2019

WILLIAM BOWIE, Plaintiff
v.
DAVID PERRY, et al., Defendants

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         It is hereby recommended that this action be dismissed due to Plaintiffs failure to prosecute.

         II. REPORT

         Plaintiff initiated this civil rights action by filing a Complaint on January 14, 2019, accompanied by a motion for leave to proceed in formapauperis ("EFP"). ECF No. 1. Upon reviewing Plaintiffs institutional account statement, the Court concluded that Plaintiff had sufficient funds in his account to pay the filing and administrative fees in this matter. The Court directed Plaintiff to tender to the "Clerk, U.S. District Court" the statutory filing fee in the amount of $350.00, plus a $50.00 administrative fee, for a total of $400.00. ECF No. 2. The Court explicitly warned Plaintiff that failure to do so on or before February 22, 2019, might result in a recommendation that this action be dismissed for failure to prosecute. Id. Despite this warning Plaintiff failed to pay the required statutory filing fees.

         On April 5, 2019, the Court issued an order directing Plaintiff to show cause on or before April 19, 2019, as to why this matter should not be dismissed based on Plaintiffs failure to prosecute and/or comply with the Court's prior orders. ECF No. 4. Plaintiff failed to respond to that order.

         The Third Circuit has set out a six-factor balancing test to guide a court in determining whether a case or claim should be dismissed for failure to prosecute. Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 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. There is no "magic formula" or "mechanical calculation" to determine whether a case should be dismissed for failure to prosecute, Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992), and 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). Rather, the court must "properly consider and balance" each of the six factors based on the record. See Hildebrand v. Allegheny County, ___ F.3d ___, 2019 WL 1783540, at *3 (3d Cir. Apr. 24, 2019) (citing Poulis, 747 F.2d at 868).

         As recently emphasized by the Court of Appeals for the Third Circuit, "dismissal with prejudice is an 'extreme' sanction" that should be employed as a "last, not first, resort." Hildebrand, 2019 WL 1783540, at *3 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). Close calls should "be resolved in favor of reaching a decision on the merits." Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, the Court of Appeals "has not hesitated to affirm the district court's imposition of sanctions, including dismissals inappropriate cases." Id. (citing Poulis, 747 F.2d at 867 n 1).

         Turning to the first Poulis factor, the Court must consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams, 29 F.3d at 873 ("[I]n determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal."). Since the filing of this matter, Plaintiff has taken none of the necessary first steps to prosecute this case and has ignored multiple orders of this Court directing him to pay the requisite filing fee. Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including his failure to respond to orders from the Court. See, e.g., Colon v. Karnes, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012) ("Plaintiff is proceeding pro se, and thus is responsible for his own actions."). This factor weighs heavily in favor of dismissal.

         The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[, ] the excessive and possibly irremediable burdens or costs imposed on the opposing party," Adams, 29 F.3d at 874, and "the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy." Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). Although this factor does not weigh heavily here, the Court notes that Plaintiffs "continued failure to communicate with the Court and continued inaction frustrates and delays resolution of this action" by preventing the defendants from receiving notice of this lawsuit and seeking a timely resolution of Plaintiffs claims. See Mack v. United States, 2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019) ("[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case.").

         The third Poulis factor weighs strongly in favor of dismissal. Since initiating this action on January 14, 2019, Plaintiff has failed to communicate with the Court in any manner. Despite being warned on two occasions that failure to comply with orders from the Court may result in a recommendation that this matter be dismissed for failure to prosecute, Plaintiff has failed to respond to any of the Court's orders. See ECF Nos. 2, 4. This conduct is sufficient to establish a history of dilatoriness. See Mack, 2019 WL 1302626, at *2 ("Mack has established a history of dilatoriness through his failure to notify the Court of his whereabouts and failure to comply with Court Orders and rules.").

         With respect to the fourth Poulis factor, "[w]illfulness involves intentional or self-serving behavior." Adams, 29 F.3d at 874. While it is difficult to evaluate willfulness on the limited record available, there is nothing on the docket to suggest that Plaintiff is not receiving the Court's orders, nor has he offered any explanation for his repeated failures to respond. Under such circumstances, the Court must conclude that those failures are intentional, tilting this factor in favor of dismissal.

         The fifth factor address the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that alternative, monetary sanctions are ineffective where the Plaintiff is indigent. See, e.g., Brennan v. Clouse, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) ("Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.") (citing Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002)). Moreover, alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court. Mack, 2019 WL 1302626, at *2 (noting that the court was "incapable of imposing a lesser sanction" on a plaintiff who refused to participate in his own lawsuit). As such, this factor weighs heavily in favor of dismissal.

         Finally, the Court must consider the potential merit of Plaintiff s claims. A claim will be deemed meritorious "when the allegations of the pleadings, if established at trial, would support recovery by plaintiff." Poulis, 747 F.2d at 869-70. Here, Plaintiff s allegations are vague and conclusory. He alleges that the prison has returned several sick slips and refuses to provide him with medical attention but does not state the nature of his medical issues or the treatment that he is currently receiving. On the ...


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