United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge
Mark Shaw (“Shaw”) is a former inmate who was
housed at all relevant times at the State Correctional
Institution at Camp Hill, Pennsylvania.Shaw commenced
this action pursuant to 42 U.S.C. § 1983. (Doc. 1). The
matter is proceeding via an amended complaint. (Doc. 24).
Named as defendants are individuals employed by the
Pennsylvania Department of Corrections. (Id.) For
the reasons set forth below, the court will dismiss this
action for failure to prosecute and failure to comply with a
amended complaint, Shaw sets forth several allegations
against the defendants. (Doc. 24). The allegations range from
claims of verbal abuse and threats, assaults by fellow
inmates, denial of food, intentional food poisoning, and
placement of a poisonous spider in his cell. (Id.)
March 19, 2019, defendants filed a motion to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
(Doc. 29). Shaw failed to oppose defendants' motion.
Therefore, on May 28, 2019, the court ordered Shaw to file a
response to defendants' motion. (Doc. 31). Shaw failed to
comply, and, on June 10, 2019, the court's mail to Shaw
was returned as undeliverable. (Doc. 33). Accordingly, on
November 25, 2019, the court issued an order directing Shaw
to provide his current address. (Doc. 34). The order warned
Shaw that “[f]ailure to comply with this order may
result in the dismissal of this case for failure to
prosecute.” (Id. at 2) (citing Federal Rule of
Civil Procedure 41(b)). Shaw failed to respond in any way to
the court's order, and, on December 2, 2019, the
court's mail to Shaw was returned as undeliverable. (Doc.
35). Shaw has not communicated with the court since December
14, 2018, and has not provided the court with a current,
updated address. (See Doc. 22).
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
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, Shaw is pro se and is solely
responsible for his actions. See Colon v. Karnes,
2012 U.S. Dist. LEXIS 14692, at *7 (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 nearly one year for Shaw to
communicate with the court, and can only conclude that he is
personally responsible for failing to inform the court of his
prejudice to the adversary generally includes “the
irretrievable 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). Shaw's
continued failure to communicate with the court and his
continued inaction frustrates and delays the resolution of
this case. This failure to communicate prejudices the
defendants who likely 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).
Shaw has established a history of dilatoriness through his
failure to notify the court of his whereabouts and failure to
comply with court orders and rules. As is clear from the
procedural background of this case, Shaw has not communicated
with the court for approximately one year. (Doc. 22). On
November 25, 2019, the court ordered Shaw to provide the
court with his current address, and warned him that this case
was subject to dismissal for failure to prosecute. (Doc. 34).
Shaw failed to comply with that order. The court finds that
over the past year, Shaw 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). A pro se plaintiff
has the affirmative obligation to keep the court informed of
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 Doc. 5, at 4, 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 abandoned the lawsuit. (Id.) It is
clear that Shaw has failed to comply with the terms set forth
in Middle District of Pennsylvania Local Rule 83.18 and the
Standing Practice Order.
the next factor, “[w]illfulness involves intentional or
self-serving behavior.” Adams, 29 F.3d at 874.
It appears that at least some of this dilatory behavior was
performed willfully and in bad faith, as Shaw has offered no
explanation for his failure to provide the court with his
current address, and has been less than diligent in pursuing
this matter. Gagliardi v. Courter, 144 Fed.Appx.
267, 268 (3d Cir. 2005) (holding that the district court did
not abuse its discretion by dismissing plaintiff's
complaint for failure to prosecute, where plaintiff failed to
respond to defendants' motion to dismiss for more than
three months and this failure to comply prejudiced
a district court must consider the availability of sanctions
alternative to dismissal. Poulis, 747 F.2d at 869.
Given Shaw's indigence, alternative, monetary, sanctions
would not be effective. See Dennis v. Feeney, 2012
U.S. Dist. LEXIS 7328, at *5 (M.D. Pa. 2012) (finding,
“monetary sanctions are unlikely to be efficacious
given that Plaintiff is indigent”). ...