United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge.
Clarence Owens (“Owens”), a former inmate who, at
all relevant times, was confined in the Dauphin County Prison
in Harrisburg, Pennsylvania, filed the above-captioned action
pursuant to 42 U.S.C. § 1983. (Doc. 1). Named as
defendants are PrimeCare Medical, Inc., and the Warden of the
Dauphin County Prison. (Id.) For the reasons set
forth below, the court will dismiss this action for failure
to prosecute and failure to comply with a court order.
complaint, Owens alleges that medical staff at the Dauphin
County Prison failed to timely refer him to an eye doctor for
surgery, resulting in the loss of vision in one eye. (Doc.
1). On January 28, 2019, and May 10, 2019, defendants filed
motions to dismiss. (Docs. 18, 20, 25). Owens failed to
oppose defendants' motions. Therefore, on May 21, 2019,
the court ordered Owens to file a response to defendants'
motions. (Doc. 27). On May 31, 2019, the court's mail to
Owens was returned as undeliverable, indicating that Owens
was released from custody. (Doc. 29). Accordingly, on May 31,
2019, the court issued an order directing Owens to provide
his current address. (Doc. 30). The order warned Owens that
“[f]ailure to comply with this order may result in the
dismissal of this case for failure to prosecute.”
(Id. at 2) (citing Federal Rule of Civil Procedure
41(b)). Owens failed to comply with the court's order.
Owens has not communicated with the court since he filed the
Inmate Account Statement on December 4, 2018, and has not
provided the court with a current, updated address.
(See Doc. 12).
courts have the inherent power to dismiss an action for
failure to prosecute sua sponte. Chambers v.
NASCO, Inc., 501 U.S. 32, 44 (1991). The United States
Court of Appeals for the Third Circuit has identified six
factors a court should consider before dismissing an action
for failure to prosecute:
(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 the 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.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d
863, 868 (3d Cir. 1984) (emphases omitted). Not all of the
Poulis factors need be satisfied to dismiss a
complaint. See Shahin v. Delaware, 345
Fed.Appx. 815, 817 (3d Cir. 2009) (citing Mindek v.
Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).
present matter, Owens is pro se and is solely
responsible for his actions. See Colon v. Karnes,
2012 U.S. Dist. LEXIS 14692, at *7 (M.D. Pa. 2012)
(“Plaintiff is proceeding pro se, and thus is
responsible for his own actions.”). At this point, the
court has been waiting more than six months for Owens to
communicate with the court, and can only conclude that he is
personally responsible for failing to inform the court of his
prejudice to the adversary generally includes “the
irretrievable loss of evidence, the inevitable dimming of
witnesses' memories or the excessive and possibly
irremediable burdens or costs imposed on the opposing
party.” Adams v. Trustees of N.J. Brewery
Emps.' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir.
1994). Prejudice also includes “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). Owens'
continued failure to communicate with the court and his
continued inaction frustrates and delays the resolution of
this case. This failure to communicate prejudices the
defendants who likely seek a timely resolution of the case.
See Azubuko v. Bell National Organization, 243
Fed.Appx. 728, 729 (3d Cir. 2007) (stating that
plaintiff's failure to file an amended complaint
prejudices defendants and compels dismissal).
Owens 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. As is clear from the
procedural background of this case, Owens has not
communicated with the court since December 4, 2018. (Doc.
12). On May 31, 2019, the court ordered Owens to provide the
court with his current address, and warned him that this case
was subject to dismissal for failure to prosecute. (Doc. 30).
Owens failed to comply with that order, and the time for
complying has now passed. The court finds that over the past
six months, Owens has delayed this matter to the extent that
his conduct constitutes a “continuous stream of
dilatory conduct.” Briscoe v. Klem, 538 F.3d
252, 261 (3d Cir. 2008). A pro se plaintiff has the
affirmative obligation to keep the court informed of his
address. (See M.D. Pa. Local Rule of Court 83.18
(providing that a pro se plaintiff “shall
maintain on file with the clerk a current address at which
all notices and copies of pleadings, motions or papers in the
action may be served upon such party.”); see
also Doc. 3, at 4, Standing Practice Order in Pro Se
Plaintiff Cases). Should such address change in the course of
this litigation, the plaintiff shall immediately inform the
court of such change, in writing. (Id.) If the court
is unable to communicate with the plaintiff because he has
failed to notify the court of his address, the plaintiff will
be deemed to have abandoned the lawsuit. (Id.) It is
clear that Owens has failed to comply with the terms set
forth in Middle District of Pennsylvania Local Rule 83.18 and
the Standing Practice Order.
the next factor, “[w]illfulness involves intentional or
self-serving behavior.” Adams, 29 F.3d at 874.
It appears that at least some of this dilatory behavior was
performed willfully and in bad faith, as Owens has offered no
explanation for his failure to provide the court with his
current address, and has been less than diligent in pursuing
this matter. Gagliardi v. Courter, 144 Fed.Appx.
267, 268 (3d Cir. 2005) (holding that the district court did
not abuse its discretion by dismissing plaintiff's
complaint for failure to prosecute, where plaintiff failed to
respond to defendants' motion to dismiss for more than
three months and this failure to comply prejudiced
a district court must consider the availability of sanctions
alternative to dismissal. Poulis, 747 F.2d at 869.
Given Owens' indigence, alternative, monetary, sanctions
would not be effective. See Dennis v. Feeney, 2012
U.S. Dist. LEXIS 7328, at *5 (M.D. Pa. 2012) (finding,
“monetary sanctions are unlikely to be efficacious
given that Plaintiff is indigent”). Moreover, the court
is incapable of imposing a lesser sanction without knowledge
of Owens' whereabouts.
final Poulis factor is meritoriousness of the claim.
A claim will be deemed meritorious when the allegations of
the complaint, if established at trial, would support
recovery. Poulis, 747 F.2d at 870. The standard for
a Rule 12(b)(6) motion to dismiss is utilized in determining
whether a claim is meritorious. Poulis, 747 F.2d at
869-70. The court finds that consideration of this factor
cannot save Owens' claims, since he is now wholly
non-compliant with his obligations as a litigant. Thus, the