United States District Court, W.D. Pennsylvania
MAGISTRATE JUDGE'S REPORT AND
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
hereby recommended that this action be dismissed due to
Plaintiffs failure to prosecute.
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
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.
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).
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).
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.
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.").
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.").
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
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.
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 ...