United States District Court, W.D. Pennsylvania
Cynthia Reed Eddy, U.S. Magistrate Judge.
reasons stated herein, this case will be
dismissed without prejudice for failure to
action was instituted with the filing of a motion to proceed
in forma pauperis on August 16, 2019 (ECF No. 1),
which was granted by order dated April 22, 2019. (ECF No. 2).
The Complaint was filed on April 22, 2019. (ECF No. 3).
Plaintiff was informed by the Court in its Memorandum Order
of April 22, 2019, that he must notify the Court of all
address changes. (ECF No. 2). He was again so
advised by order dated April 25, 2019. (ECF No. 8
at 5). Plaintiff subsequently filed several notices of change
of address. (ECF Nos. 19, 20). On September 12, 2019,
Defendants Officer Spade and Andy Radevski filed a motion to
dismiss with brief in support. (ECF Nos. 25, 26). The court
converted the motion to a motion for summary judgment under
Fed.R.Civ.P. 56 and ordered a response brief to be filed by
Plaintiff on or before October 16, 2019. (ECF No. 27). This
order, as well as a text order setting a deadline for the
filing of an election for either consenting to jurisdiction
by the Magistrate Judge or to have District Judge assigned to
the case (ECF No. 28) were sent to Plaintiff at his address
of record, SCI Mercer, 801 Butler Pike, Mercer, PA, 16137,
but were returned to the court on October 3, 2019 marked
“Return to Sender. Refused. Inmate Paroled.” (ECF
October 4, 2019, we entered an order that Plaintiff show
cause, on or before October 21, 2019, why this action should
not be dismissed pursuant to Federal Rule of Civil Procedure
41(b) in that he has failed to keep the Court informed of his
address. He was further notified that should he fail to do
so, the Court will deem him to have abandoned this lawsuit,
and the case will be dismissed. This order was sent to his
address of record, SCI Mercer, 801 Butler Pike, Mercer, PA,
time for responding to the Order to Show Cause has now
passed. Therefore, consistent with the October 4, 2019 Order,
and pursuant to Poulis v. State Farm Fire & Cas.
Co., 747, F.2d 863 (3d Cir. 1984), the case now is
subject to dismissal.
district court has inherent power to dismiss a complaint, sua
sponte, under Federal Rule of Civil Procedure 41(b) for a
plaintiff's failure to comply with an order of court.
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).”); Guyer
v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990).
Furthermore, a court's decision to dismiss for failure to
prosecute is committed to the court's sound discretion.
See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d
225, 230 (3d Cir. 1998) (“We review for abuse of
discretion a district court's dismissal for failure to
prosecute pursuant to Rule 41(b).”), abrogated on
other grounds by Winkelman ex rel. Winkelman v. Parma City
School Dist., 550 U.S. 516 (2007). In exercising that
discretion, a district court should, to the extent
applicable, consider the six factors identified in Poulis
v. State Farm Fire and Casualty Co., 747 F.2d
868 (3d Cir. 1984), when it levies the sanction of dismissal
of an action for failure to obey discovery schedules, failure
to prosecute, or to comply with other procedural rules.
Harris v. City of Philadelphia, 47 F.3d 1311, 1330
n.18 (3d Cir. 1995).
Poulis, the Court of Appeals for the Third Circuit
set forth the following six factors to be weighed in
considering whether dismissal is proper:
(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.
Id. at 868. These factors must be balanced in
determining whether dismissal is an appropriate sanction,
although not all need to weigh in favor of dismissal before
dismissal is warranted. Hicks v. Feeney, 850 F.2d
152 (3d Cir. 1988). Consideration of these factors follows.
The extent of the party's personal
is proceeding in this matter pro se. Certain
Defendants have filed a motion to dismiss, converted to a
motion for summary judgement, to which Plaintiff has not
responded. Plaintiff has not filed a Notice of Change of
Address. The responsibility for this failure to comply is