United States District Court, E.D. Pennsylvania
J. PAPPERT GERALD J. PAPPERT, J.
se Plaintiff Eduardo Marrero, also known as Hector
Lopez, sued Philadelphia Police Commissioner Richard Ross,
Jr., the “Philadelphia Strike Task Force” and
three unnamed Task Force officers for violating his rights
under 42 U.S.C. § 1983, the United States Constitution
and Pennsylvania law. (Compl., ECF No. 2.) On July 9, 2018,
Marrero filed an application for leave to proceed in
forma pauperis, (ECF No. 1), which was denied without
prejudice on July 16, 2018 for failure to file a certified
copy of his prisoner account statement, (ECF No. 5). On
August 10, 2018, Marrero filed that statement and also moved
for appointment of counsel. (ECF Nos. 7-8.) Three days later,
the Court granted him leave to proceed in forma
pauperis and referred his case to the Prisoner Civil
Rights Panel for possible appointment of
counsel. (ECF Nos. 9-10.)
March 15, 2019, Marrero provided the Court with an updated
address. See (ECF No. 17). Defendants moved to
dismiss Marrerro's Complaint for failure to state a claim
on March 25, 2019, arguing that Marrero failed to allege
Commissioner Ross's personal involvement in the activity
giving rise to his claims and that the Philadelphia Strike
Task Force was a governmental subunit and not amenable to
suit under § 1983. (Mot. Dismiss, ECF No. 18.) The Court
issued an Order on May 30, 2019, directing Marrero to respond
to Defendants' Motion by July 1, 2019 and advising him
that his case would be dismissed for failure to prosecute if
he did not do so. (ECF No. 23.) After Marrero failed to
respond, the Court issued a second Order on July 11, 2019
telling him to respond by August 9, 2019 and warning again of
dismissal for failure to prosecute. (ECF No. 24.) There is
nothing on the docket to indicate that Marrero did not
receive Defendants' Motion or the Court's Orders.
Marrero has not responded to the Court's Orders or
communicated with the Court in any way over the last five
months and his case is dismissed with prejudice.
Rule of Civil Procedure 41(b) permits a court to dismiss a
suit for failure to prosecute. Fed.R.Civ.P. 41(b). Courts may
dismiss a case with prejudice to enable them to “manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Spain v.
Gallegos, 26 F.3d 439, 454 (3d Cir. 1994). Before
dismissing a case as a sanction for a party's litigation
conduct, a court typically must balance the six factors in
Poulis v. State Farm Fire & Casualty Co.:
(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 alternate sanctions and (6) the
meritoriousness of the claims or defenses.
747 F.2d 863, 868 (3d Cir. 1984). There is no “magic
formula” or “mechanical calculation” when
analyzing these factors. Briscoe v. Klaus, 538 F.3d
252, 263 (3d Cir. 2008) (citations omitted). “[N]o
single [ ] factor is dispositive.” Id.
Hildebrand v. Allegheny County, the Third Circuit
Court of Appeals emphasized its strong policy favoring
decisions on the merits and cautioned that dismissal with
prejudice is an “extreme sanction” and “a
sanction of last, not first, resort.” 923 F.3d 128, 132
(3d Cir. 2019) (citations omitted). 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)). Nonetheless, the Third Circuit
“has not hesitated to affirm the district court's
imposition of sanctions, including dismissals in appropriate
cases.” Id. (citing Poulis, 747 F.2d
at 867 n. 1).
balance, dismissal is warranted in this case. As a pro
se litigant, Marrero bears personal responsibility for
failing to comply with the Court's May 30 and July 11
Orders. See Emerson v. Thiel Coll., 296 F.3d 184,
190 (3d Cir. 2002) (finding that failure to comply with the
court's orders could not be blamed on counsel when
plaintiff was proceeding pro se). Both Orders warned
that the failure to respond would result in dismissal of the
case. See (ECF Nos. 23 & 24).
respect to the second Poulis factor, prejudice to
the adversary does not mean “irremediable harm.”
Hildebrand, 923 F.3d at 134 (quoting Ware v.
Rodale Press Inc., 322 F.3d 218, 222 (3d Cir. 2003)).
Although Marrero's failure to respond to Defendants'
Motion to Dismiss has stalled the resolution of his claims,
the Court has no information suggesting his delay is a source
of substantial prejudice to Defendants. See Scarborough
v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984) (offering
examples of prejudice such as 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”).
third Poulis factor calls for dismissal. Courts must
evaluate “‘a party's problematic acts . . .
in light of [his] behavior over the life of the
case.'” Adams 29 F.3d at 875.
“Extensive or repeated delay or delinquency constitutes
a history of dilatoriness, such as consistent non-response to
interrogatories, or consistent tardiness in complying with
court orders.” Id. at 874. Failure to
prosecute does not require that a plaintiff take “any
positive steps to delay trial, ” and “[i]t is
quite sufficient if he does nothing.” Id. at
875 (citations omitted). Here, Marrero has been inactive in
the case for five months and has failed to comply with two
Court Orders. See (ECF Nos. 23 & 24).
conduct suggests, at the very least, that he no longer cares
to proceed in the case. The fourth Poulis factor
centers on “‘the type of willful or contumacious
behavior' that can be characterized as ‘flagrant
bad faith,' such as failing to answer interrogatories for
nearly a year and a half, demanding numerous extensions,
ignoring admonitions by the court, and making false promises
to correct delays.” Hildebrand, 923 F.3d at
135 (citations omitted). “‘Willfulness involves
intentional or self-serving behavior.'”
Id. (quoting Adams, 29 F.3d at 875).
Marrero's repeated failures to respond seemingly
demonstrate an intentional abandonment of his claims. See
Mohler v. Synchrony Bank, 4:17-CV-02260, 2019 WL
2127349, at *4 (M.D. Pa. Apr. 29, 2019), report and
recommendation adopted, 4:17-CV-2260, 2019 WL 2126700
(M.D. Pa. May 15, 2019) (finding that after not communicating
with the court for over six months “[plaintiff's]
silence and failure to litigate this action lead to an
inference that he has willfully abandoned this case.”).
light of Marrero's in forma pauperis status, the
fifth Poulis factor weighs strongly in favor of
dismissal. Alternative sanctions short of dismissal-such as
fines, costs, or an award of attorneys' fees-cannot be
imposed. See Emerson, 296 F.3d at 191 (upholding a
finding that monetary sanctions ...