United States District Court, W.D. Pennsylvania
S. Cercone, District Judge
REPORT AND RECOMMENDATION
Pupo Lenihan, United States Magistrate Judge
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.
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.
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.
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
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).
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.
The Poulis Factors
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 ...