United States District Court, M.D. Pennsylvania
D. MARIANI UNITED STATES DISTRICT JUDGE.
Fausto Lugo ("Lugo"), a former inmate confined in
the Lebanon County Prison, Lebanon, Pennsylvania, initiated
this action on May 29, 2018 (Doc. 1). For the reasons set
forth below, the Court will dismiss this action for failure
to prosecute and failure to comply with a Court Order.
asserts an Eighth Amendment deliberate indifference claim
based upon Defendants' alleged failure to adequately
respond to Plaintiffs chest pain, which he reportedly
experienced between May 1-3, 2018. (Doc. 1). On August 7,
2018 an answer was filed by Defendant Viramontes, and on July
9, 2019, Defendant Matias filed a motion for summary
judgment. (Doc. 15). Lugo did not oppose the motion and has
not communicated with the Court since the filing of his
Financial Affidavit on June 22, 2018. (Doc. 8).
Order dated October 11, 2019, the Court directed Plaintiff to
file a brief in opposition to Defendant's pending motion
for summary judgment. (Doc. 18). The Order warned Lugo that,
failure to comply with this Order may result in the dismissal
of this case for failure to prosecute. Id. (citing
Federal Rule of Civil Procedure 41(b)). Lugo failed to reply
to this court's order.
October 22, 2019, this Court's October 11, 2019 Order was
returned, stating "return to sender, attempted - not
known, unable to forward" and that Plaintiff had been
released to the street. (Doc. 19).
courts have the inherent power to dismiss an action for
failure to prosecute sua sponte. Chambers v. NASCO,
Inc., 501 U.S. 32, 44 (1991). The United States Court of
Appeals for the Third Circuit has identified six (6) factors
a court should consider before dismissing an action for
failure to prosecute:
(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.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d
863, 868 (3d Cir. 1984) (emphases omitted). Not all of the
Poulis factors need be satisfied to dismiss a
complaint. See Shahin v. Delaware, 345 Fed.Appx.
815, 817 (3d Cir. 2009) (citing Mindek v. Rigatti,
964 F.2d 1369, 1373 (3d Cir. 1992)).
present matter, Lugo is pro se and is solely
responsible for his actions. See Colon v.
Karnes, 2012 U.S. Dist. LEXIS 14692, at *7, 2012 WL
383666 (M.D. Pa. 2012) ("Plaintiff is proceeding pro se,
and thus is responsible for his own actions."). At this
point, the Court has been waiting approximately sixteen
months for Lugo to communicate with the Court, and can only
conclude that he is personally responsible for failing to
inform the Court of his whereabouts.
prejudice to the adversary generally include the retrievable
loss of evidence, the inevitable dimming of witnesses'
memories or the excessive and possibly irremediable burdens
or costs imposed on the opposing party." Adams v.
Trustees of N.J. Brewery Emps.' Pension Trust Fund,
29 F.3d 863, 874 (3d Cir. 1994). Prejudice also includes
"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). Lugo's continued failure to communicate with
the Court and continued inaction frustrates and delays
resolution of this action. This failure to communicate
clearly prejudices the Defendants who seek a timely
resolution of the case. See Azubuko v. Bell National
Organization, 243 Fed.Appx. 728, 729 (3d Cir. 2007)
(stating that plaintiff's failure to file an amended
complaint prejudices defendants and compels dismissal).
Lugo has established a history of dilatoriness through his
failure to notify the Court of his whereabouts and failure to
comply with Court Order and rules. As is clear from the
procedural background of this case, Lugo has not communicated
with the Court since June 22, 2018. (Doc. 8). On October 15,
2019, the Court Ordered Lugo to respond to Defendant's
pending motion for summary judgment, and warned him that this
case was subject to dismissal for failure to prosecute. (Doc.
18). The Order warned Lugo that, "[f]ailure to comply
with this Order may result in the dismissal of this case for
failure to prosecute." (Id.) (citing Federal
Rule of Civil Procedure 41 (b)). Lugo failed to comply with
the Order and the time for complying has now passed. The
Court finds that over the past sixteen months, Lugo has
delayed this matter to the extent that his conduct
constitutes a "continuous stream of dilatory
conduct." Briscoe v. Klem, 538 F.3d 252, 261
(3d Cir. 2008).
se plaintiff has the affirmative obligation to keep the court
informed his address. (See M.D. Pa. Local Rule of Court 83.18
(providing that a pro se plaintiff "shall
maintain on file with the clerk a current address at which
all notices and copies of pleadings, motions or papers in the
action may be served upon such party."); see
also Standing Practice Order in Pro Se Plaintiff Cases).
Should such address change in the course of this litigation,
the plaintiff shall immediately inform the Court of such
change, in writing. Id. If the Court is unable to
communicate with the plaintiff because he has failed to
notify the Court of his address, the plaintiff will be deemed
to have ...