United States District Court, W.D. Pennsylvania
MATT L. LOPER, Plaintiff
SAMUEL VINCENT PENDOLINO, Defendant
PARADISE BAXTER UNITED STATES DISTRICT JUDGE
MAGISTRATE JUDGE'S REPORT AND
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE.
hereby recommended that this action be dismissed due to
Plaintiff's failure to prosecute.
initiated this civil rights action on July 2, 2019, by filing
a motion for leave to proceed in forma pauperis
(“IFP”). In lieu of a civil complaint, Plaintiff
submitted two exhibits: a document styled a “private
criminal complaint” that he had previously mailed to
the Office of the District Attorney in Meadville,
Pennsylvania, and a response letter from the district
attorney informing him that his private criminal complaint
had been rejected. ECF No. 1. Plaintiff did not identify any
legal claims, requests for relief, or supply any sort of
factual narrative to explain the relevance of those
26, 2019, this Court denied Plaintiff's IFP motion
because it was not accompanied by a complaint. ECF No. 2. The
Court ordered him to file a civil complaint on or before
August 26, 2019, and provided him with guidance as to the
appropriate format and content of a civil complaint.
Plaintiff failed to respond.
September 5, 2019, the Court issued an order directing
Plaintiff to show cause as to his failure to comply with the
Court's previous order or otherwise take the necessary
first steps to initiate a civil action. ECF No. 3. That order
was mailed to Plaintiff at his address of record on the same
date. The Court explicitly warned Plaintiff that failure to
respond on or before September 20, 2019, would result in a
recommendation that this matter be dismissed for failure to
prosecute. Id. Plaintiff again failed to respond.
Court of Appeals for the Third Circuit has set out a
six-factor balancing test to guide a court in determining
whether a case or claim should be dismissed for failure to
prosecute. See Poulis v. State Farm Fire & Casualty
Co., 747 F.2d 863 (3d Cir. 1984). The court must
consider: 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 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.
There is no “magic formula” or “mechanical
calculation” to determine whether a case should be
dismissed for failure to prosecute, Mindek v.
Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992), and not all
of the six factors need to weigh in favor of dismissal before
dismissal is warranted. Hicks v. Feeney, 850 F.2d
152 (3d Cir. 1988). Rather, the court must “properly
consider and balance” each of the six factors based on
the record. See Hildebrand v. Allegheny County, --
F.3d --, 2019 WL 1783540, at *3 (3d Cir. Apr. 24, 2019)
(citing Poulis, 747 F.2d at 868).
recently emphasized by the Court of Appeals, “dismissal
with prejudice is an ‘extreme' sanction” that
should be employed as a “last, not first,
resort.” Hildebrand, 2019 WL 1783540, at *3
(quoting Nat'l Hockey League v. Metro Hockey Club,
Inc., 427 U.S. 639, 643 (1976), and Poulis, 747
F.2d at 867, 869). 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)). Nevertheless, the Court of Appeals “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).
to the first Poulis factor, the Court must consider
the extent to which the dilatory party is personally
responsible for the sanctionable conduct. See Adams,
29 F.3d at 873 (“[I]n determining whether dismissal is
appropriate, we look to whether the party bears personal
responsibility for the action or inaction which led to the
dismissal.”). Since the filing of this matter,
Plaintiff has taken none of the necessary first steps to
pursue his claims and has ignored multiple orders of this
Court directing him to take various steps to prosecute this
action. Because Plaintiff is proceeding pro se, he is solely
responsible for his own conduct, including his failure to
respond to orders from the Court. See,
e.g., Colon v. Karnes, 2012 WL 383666, at
*3 (M.D. Pa. Feb. 6, 2012) (“Plaintiff is proceeding
pro se, and thus is responsible for his own actions.”).
This factor weighs heavily in favor of dismissal.
second Poulis factor assesses whether the adverse
party has suffered prejudice because of the dilatory
party's behavior. Relevant concerns include “the
irretrievable loss of evidence, the inevitable dimming of
witnesses' memories[, ] the excessive and possibly
irremediable burdens or costs imposed on the opposing party,
” Adams, 29 F.3d at 874, and “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). Although this factor does not weigh heavily here,
the Court notes that Plaintiff's “continued failure
to communicate with the Court and continued inaction
frustrates and delays resolution of this action” by
preventing the unserved defendant from receiving notice of
this lawsuit and seeking a timely resolution of
Plaintiff's claims. See Mack v. United States,
2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019)
(“[F]ailure to communicate clearly prejudices the
Defendants who seek a timely resolution of the case.”).
third Poulis factor weighs strongly in favor of
dismissal. At this point, Plaintiff has failed to engage with
the Court or take any steps to pursue his claims for almost
four months. Despite being warned that failure to comply with
orders from the Court would result in a recommendation that
this matter be dismissed for failure to prosecute, Plaintiff
failed to respond to any of the Court's orders.
See ECF Nos. 2, 3. This conduct is sufficient to
establish a history of dilatoriness. See Mack, 2019
WL 1302626, at *2 (“Mack has established a history of
dilatoriness through his failure to notify the Court of his
whereabouts and failure to comply with Court Orders and
respect to the fourth Poulis factor,
“[w]illfulness involves intentional or self-serving
behavior.” Adams, 29 F.3d at 874. While it is
difficult to evaluate willfulness on the limited record
available, there is nothing on the docket to suggest that
Plaintiff is not receiving the Court's orders, nor has he
offered any explanation for his repeated failures to respond.
Under such ...