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Nieves v. Capozza

United States District Court, W.D. Pennsylvania

September 24, 2019

LUIS NIEVES, Plaintiff,
v.
MARK CAPOZZA and KAZI, MOOK, Defendants.

          David S. Cercone, District Judge

          REPORT AND RECOMMENDATION

          Lisa Pupo Lenihan, United States Magistrate Judge

         I. RECOMMENDATION

         For the following reasons, it is respectfully recommended that this case be dismissed with prejudice for Plaintiff's failure to prosecute insofar as he has failed pay the required initial partial filing fee or otherwise showed cause why this case should not be dismissed.

         II. REPORT

         A. Procedural History

         This case was initiated by the filing of a Motion for Leave to Proceed in forma pauperis (“IFP”) that was received by Plaintiff Luis Nieves (“Plaintiff”) and docketed at the above referenced case number on October 19, 2018. (ECF No. 1.) By order dated July 22, 2019, the Court granted the IFP Motion and directed Plaintiff to return the enclosed authorization form and pay an initial partial filing fee of $13.31. (ECF No. 3.) Plaintiff was informed that the authorization form was to be received no later than August 1, 2019 and that the partial filing fee received no later than August 22, 2019. Id. That Order was mailed to Plaintiff at his address of record, but Plaintiff did not file the authorization or pay the initial partial filing fee.

         On August 28, 2019, the Court entered an Order to Show Cause why this case should not be dismissed for Plaintiff's failure to prosecute insofar as he had failed to comply with the Court's order to return his authorization form and pay the initial partial filing fee. (ECF No. 5.) Plaintiff was told that he had until September 13, 2019 to return his authorization form and pay the initial partial filing fee of $13.31, or otherwise show cause what this case should not be dismissed. Id. Plaintiff was also told that his failure to do so would result in the dismissal of his case for failure to prosecute. Id. As of today, Plaintiff has still not complied.

         B. Discussion

         Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim, and, under this Rule, “a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order.” Qadr v. Overmyer, No. 15-3090, 642 Fed.Appx. 100, 102 (3d Cir. 2016) (per curiam) (citing Fed.R.Civ.P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (“The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b).”)

         The Third Circuit Court of Appeals has stated that “a district court dismissing a case sua sponte ‘should use caution in doing so because it may not have acquired knowledge of the facts it needs to make an informed decision.'” Qadr, No. 15-3090, 642 Fed.Appx. at 103 (quoting Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008)). Before engaging in a sua sponte dismissal, “the district court ‘should provide the plaintiff with an opportunity to explain his reasons for failing to prosecute the case or comply with its orders.'” Id. (quoting Briscoe, 538 F.3d at 258).

         By Order to Show Cause dated August 28, 2019, Plaintiff was advised that his failure to return his authorization form and pay the initial partial filing fee or otherwise show cause by September 13, 2019 would result in the dismissal of this case without further notice. Plaintiff has been given ample opportunity to comply and has failed to do so.

         1. The Poulis Factors

         In Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit Court of Appeals set forth the following six factors to be weighed in ...


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