Opinion
Civil Action No. 2:18-cv-0589
01-07-2020
ANTHONY CARTER, Plaintiff, v. BOROUGH OF PITCAIRN, et al., Defendants.
United States District Judge Marilyn J. Horan
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be dismissed with prejudice based upon Plaintiff's failure to prosecute this action.
II. REPORT
At the time the case was initiated, Plaintiff was incarcerated at the Allegheny County Jail. Plaintiff's motion for leave to proceed in forma pauperis was granted and the Complaint filed on May 17, 2018 (ECF Nos. 3 and 4). In both the Order granting leave to proceed in forma pauperis (ECF No. 3) and the Court's Standing Practice Order for Pro Se Civil Rights Cases (ECF No. 2), Plaintiff was advised that he was under a continuing obligation to notify the Court of any change of address and failure to do so may result in the dismissal of the case.
On December 2, 2019, the Court's Order of 10/29/2019 (ECF No. 78) was returned to the Court with the following notation on the envelope: "Return to Sender. Went Home." (ECF No. 81). The next day, the Court's Order of 11/6/2019 (ECF No. 80) was returned to the Court with a similar notation on the envelope: "Return to Sender. Released." (ECF No. 82). On December 5 2019, the Court confirmed with the Inmate Account Supervisor at Allegheny County Jail that Plaintiff had been released from custody on November 4, 2019. The Jail does not have a forwarding address for Plaintiff. Since his release, Plaintiff has not provided the Court with a valid address.
On December 5, 2019, the Court issued an Order stating that Plaintiff had been advised in two separate Orders that he was under a continuing obligation to notify the Court of any change of address and failure to do so may result in the dismissal of the case. Plaintiff was advised that if no Notice of Change of Address was filed by January 6, 2020, it would be recommended that the case be dismissed for failure to prosecute. (ECF No. 83). As with the Court's prior Orders, this Order was returned to the Court marked "Return to Sender. Gone." (ECF No. 84).
A federal court has the discretion to dismiss a proceeding sua sponte based on a party's failure to prosecute the action. Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Qadr v. Overmyer, 642 F. App'x 100, 102 (3d Cir. 2016) (citing Fed. R. Civ. P. 41(b)). Specifically, Plaintiff's failure to comply with a court order constitutes a failure to prosecute this action, and therefore, this action is subject to dismissal subject to Federal Rule of Civil Action 41(b), which states in pertinent part:
Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule C except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 C operates as an adjudication on the merits.Fed. R. Civ. P. 41(b).
A district court has the power to dismiss a case, whether the plaintiff is proceeding pro se or otherwise, pursuant to Fed.R.Civ.P. 41(b) for failure to comply with an order of the court. The Court of Appeals for the Sixth Circuit has commented that "while pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer." Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Thus, a pro se litigant's failure to comply with a court order is not the same as "inartful pleading or [a] lack of legal training." Id. at 110.
The Court of Appeals for the Third Circuit 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, 641 F. App'x at 103 (quoting Briscoe v. Klaus 538 F.3d 252, 258 (3d Cir. 2008)). Before engaging in a sua sponte dismissal, "the 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).
Additionally, our court of appeals has established a six-factor balancing test to guide a court's analysis as to whether to dismiss a claim as a sanction:
(1) extent of the party's personal responsibility;Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). In balancing the Poulis factors, the Court must analyze the factors in light of the "strong policy favoring decisions on the merits." Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir 2019). Our appellate court has emphasized that "dismissals with prejudice or defaults are drastic sanctions. Although a court must balance the six factors, it need not find that all factors are met before dismissing an action with prejudice. Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912 (3d Cir. 1992) (applying some or all of the six-part test in reviewing sanction orders that deprive a party of the right to proceed with or defend against a claim); Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (finding it is not necessary that all of the factors point toward a default before that sanction will be upheld).
(2) 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) effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and
(6) meritoriousness of the claim or defense.
Furthermore, the courts of the Third Circuit have held that a "pro se party's failure to notify the Court of his change of address provides an adequate basis for dismissing an action for failure to prosecute." Peterson v. Glunt, No. CIV. A. 11-0402, 2011 WL 6955812, at *2 (W.D. Pa. Dec. 8, 2011), report and recommendation adopted, No. CIV. A. 11-0402, 2012 WL 28240 (W.D. Pa. Jan. 5, 2012); see, e.g., Griffin v. Office of the Inspector General, CIV. A 17-0272, 2018 WL 1230560, *4 (W.D. Pa. Jan. 30, 2018), report and recommendation adopted with modification, CIV. A 17-0272, 2018 WL 1183214 (W.D. Pa. Mar. 7, 2018); Bey v. Pennsylvania Cty. of Union 17th Dist. ex rel. Ritter, No. 1:11-CV-1154, 2011 WL 4344134, at *1 (M.D. Pa. Sept. 14, 2011) (dismissing an action for plaintiff's failure to provide new address).
A review and assessment of the Poulis factors weighs heavily in favor of dismissing this action based on Plaintiff's failure to prosecute:
1. The Extent of the Party's Personal Responsibility
"[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." Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 873 (3d Cir. 1994). In determining personal responsibility for the delay, the Court must distinguish "between a party's responsibility for delay and counsel's responsibility." Hildebrand, 923 F.3d at 133 (citing Poulis, 747 F.2d at 868). A plaintiff is not conjecturally responsible for his or her counsel's delay. Id. Any doubt as to personal responsibility should be resolved " ' in favor of reaching a decision on the merits'." Id. at 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Here, Plaintiff is proceeding pro se, so the responsibility for failing to keep his address updated is his alone. Although typically a show cause order would be entered before recommending dismissal, such an order would be a futile effort as the Plaintiff's address of record is not a valid means of service. Plaintiff's failure to provide a valid address weighs heavily in favor of dismissal.
2. Prejudice to the Adversary
Prejudice to the adversary is a substantial factor in the Poulis analysis, but like any other factor, it is not dispositive. Hildebrand, 923 F.3d at 134. After a period of discovery, Defendants moved for summary judgment. Plaintiff has failed to respond to this motion. Plaintiff's failure to communicate with the Court prevents Defendants from obtaining 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."). This factor weighs in favor of dismissal.
3. A History of Dilatoriness
A history of dilatoriness is generally established by repeated "delay or delinquency." Adams, 29 F.3d at 984. While once or twice is normally insufficient, this factor weighs in favor of dismissal where the plaintiff has a history of repeated delay. Hildebrand, 923 F.3d at 135 (citation omitted). In addition to repeated acts, "extensive" delay can also create a history of dilatoriness. Adams, 29 F.3d at 874. A "failure to prosecute" does not require that plaintiff take affirmative "steps to delay the trial . . . it is quite sufficient if [he/she] does nothing . . . ." Id. at 875 (citation omitted).
Here, Plaintiff does not have a history of dilatoriness, but he has not notified the Court of his change of address. If the Court is unable to communicate with Plaintiff then this is sufficient evidence, in the Court's view, to indicate that Plaintiff no longer desires to proceed with this action. Thus, this factor weighs in favor of dismissal.
4. Whether the Party's Conduct Was Willful or In Bad Faith
In determining if Plaintiff's conduct constituted willful or bad faith, the "court should look for 'the type of willful or contumacious behavior' that can be characterized as 'flagrant bad faith,' such as [a case history of] failing to answer interrogatories for nearly a year and a half, demanding numerous extensions, ignoring admonitions by the court, and making false promises to correct delays." Hildebrand, 923 F.3d at 135 (citing Scarborough, 747 F.2d at 875 (citation omitted)). "Willfulness involves intentional or self-serving behavior." Adams, 29 F.3d at 875. Although "[a] lengthy delay reflects 'inexcusable negligent behavior,' id. at 876, . . . that behavior alone does not rise to the level of willfulness or bad faith." Hildebrand, 923 F.3d at 135. Finally, "[b]ecause the harsh sanction of dismissal should serve to deter bad faith or self-serving behavior, and because of our policy of favoring decisions on the merits, [in the absence of evidence] that the delay was not effectuated willfully or in bad faith, [this factor] should weigh against dismissal." Id. at 136.
There is no indication on this record that Plaintiff's failure was the result of any excusable neglect. In addition, in both the Order granting leave to proceed in forma pauperis (ECF No. 3) and the Court's Standing Practice Order for Pro Se Civil Rights Cases (ECF No. 2), Plaintiff was specifically informed that he had to keep the Court advised of his current address at all times throughout the litigation and he was ordered to notify the Court in writing as to any and all address changes. The conclusion that his failure to do so is willful is inescapable. Therefore, this factor weighs in favor of dismissal.
5. Alternative Sanctions
A district court must thoroughly consider "alternative sanctions before dismissing a case with prejudice." Id. (citing Briscoe, 538 F.3d at 262). The Court should also provide an analysis of effectiveness sufficient "to honor [the] longstanding tradition of favoring decisions on the merits." Id. In so doing, the court should be mindful that "[a]lternatives are particularly appropriate when the plaintiff has not personally contributed to the delinquency." Poulis, 747 F.2d at 866 (citations omitted). "[A]lternative sanctions need only be effective toward mitigating the prejudice caused by dilatory behavior or delinquency." Hildebrand, 923 F.3d at 136. They are not required to be "completely amelioriative." Id.
There are no alternative sanctions which would adequately punish Plaintiff for his failure to adhere to this Court's orders; imposing a monetary sanction on Plaintiff, who is proceeding in forma pauperis, would not be effective as he appears to be impecunious. Moreover, the Court is unaware of Plaintiff's whereabouts making it impossible to impose any alternative sanctions. Therefore, the Court can see no alternative sanction that would be appropriate other than dismissal.
6. Meritoriousness of the Claim or Defense
"The standard for determining whether a plaintiff's claims are meritorious 'is moderate.' " Adams, 29 F.3d at 876. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not a summary judgment standard, is applicable in a Poulis analysis. Id. at 869-70. Plaintiff's claims survived Defendants' motion to dismiss. Therefore, this factor weighs slightly in favor of Plaintiff.
In summary, at least five of the six Poulis factors weigh heavily in favor of dismissal. The Court cannot properly control its docket, move this action forward, and properly protect the rights of all parties if Plaintiff fails to comply with orders issued by this Court, specifically if he fails to provide the Court with a valid address or a change of address. Accordingly, it is respectfully recommended that this action be dismissed with prejudice for Plaintiff's failure to prosecute. To the extent Plaintiff disagrees, he should file objections to this recommendation forthwith.
III. Conclusion
Based on the discussion above, it is respectfully recommended that this action be dismissed for failure to prosecute.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by January 24, 2020, and Defendants, because they are electronically registered parties, must file objections, if any, by January 21, 2020 . The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge DATED: January 7, 2020 cc: ANTHONY CARTER
167846
Allegheny County Jail
950 2nd Avenue
Pittsburgh, PA 15219
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