Opinion
Civil Action No. 2:18-cv-0995
10-12-2018
THOMAS J. TEWELL, Plaintiff, v. WASHINGTON CO. CORRECTIONAL FACILITY, et al., Defendants.
United States District Judge Cathy Bissoon
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the 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 Washington County Correctional Facility. Plaintiff's motion for leave to proceed in forma pauperis was granted and the Complaint filed on August 14, 2018 (ECF Nos. 5, 6). In both the Order granting leave to proceed in forma pauperis (ECF No. 5) and the Court's Standing Practice Order for Pro Se Civil Rights Cases (ECF No. 3), 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.
The case was initiated by the filing of a motion for leave to proceed in forma pauperis, which was received by the Court on July 26, 2018; however, the complaint is dated July 21, 2018.
On August 29, 2018, the Court received correspondence from the Inmate Account Supervisor at the Washington County Correctional Facility returning the Court's Orders of August 14, 2018, and advising the Court that Plaintiff had been released from the Washington County Correctional Facility on August 9, 2018. (ECF No. 9). Since his release, Plaintiff has not provided the Court with a valid address.
On August 29, 2018, the Court ordered Plaintiff to file a Notice of Change of Address with the Court on or before September 28, 2018. Plaintiff was also advised that if he failed to file a Notice of Change of Address, it would be recommended that his case be dismissed for failure to prosecute. As with the Court's prior Orders, this Order was returned to the Court marked "RETURN TO SENDER. Inmate released 8/9/18." (ECF No. 11). To date, Plaintiff has not complied with the Court's Order of August 29, 2018, nor has he sought an extension of time within which to do so.
The Court cannot properly control its docket, move this action forward, and properly protect the rights of all parties if the Plaintiff fails to comply with orders issued by this Court, specifically if he fails to provide the Court with a valid address, or change of address.
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); Mindek v. Rigatti, 964 F.2d 1369, 1374 (3d Cir. 1992). 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 claim of plaintiff, whether 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 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 weighing the Poulis factors, the established presumption is that "doubts should be resolved in favor of reaching a decision on the merits." Scarborough v. Eubanks, 747 F.2d 871, 878 (3d Cir. 1984) (citing Gross v. Stereo Component Sys., Inc., 700 F.2d 120, 122 (3d Cir. 1983)). 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). Following these precedents, this Court will analyze the present action to determine whether it should be dismissed based on Plaintiff's failure to prosecute.
1. The Extent of the Party's Personal Responsibility
Plaintiff is proceeding in this matter pro se. This Court ordered Plaintiff to file a Notice of Change of Address no later than September 28, 2018. 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. The Court has already attempted to serve Plaintiff documents at his address of record and same were returned to the Court as undeliverable. It would be a waste of resources for the Court to attempt to serve an order to show cause. The Plaintiff's failure to provide a valid address, or change of address, is considered as weighing heavily on this first Poulis factor.
2. Prejudice to the Adversary
Defendants have not responded to the complaint as the case was administratively closed prior to service pending the receipt of Plaintiff's change of address. However, Defendants clearly will be prejudiced if they are required to respond to the Complaint. Defendants will be forced to engage in the drafting and filing of legal documents, as well as to expend time, energy, and resources in order to resolve the matter. However, because Plaintiff has failed to provide a valid address, the Court and Defendants are unable to serve upon Plaintiff any pleadings, orders, and other documents. Plaintiff has made it impossible to adjudicate the issue at hand.
3. A History of Dilatoriness
Plaintiff has made no effort to move this case forward and has exceeded Court imposed filing deadlines. This is sufficient evidence, in the Court's view, to indicate that Plaintiff does not intend to proceed with this case in a timely fashion.
4. Whether the Party's Conduct Was Willful or In Bad Faith
The Plaintiff's failure to provide a valid address, or to contact the Court in any fashion, indicates that his failure to prosecute is willful. The responsibility for Plaintiff's failure to respond is his alone.
5. Alternative Sanctions
There are no alternative sanctions which would adequately punish the 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.
6. Meritoriousness of the Claim or Defense
At this early stage of the litigation, it is difficult to assess the meritoriousness of Plaintiff's claims. The issue is unclear without full proceedings. This factor neither weighs for or against dismissal.
In summary, at least five of the six Poulis factors weigh heavily in favor of dismissal. 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.
Plaintiff 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 October 29, 2018. Plaintiff is 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
United States Magistrate Judge DATED: October 12, 2018 cc: THOMAS J. TEWELL
Washington County Correctional Facility
100 W. Cherry Ave.
Washington, PA 15301
(via U.S. First Class Mail)