Opinion
2:21-CV-114
06-02-2022
BRIAN NELSON, Plaintiff, v. GEORGE LOWTHER, Warden, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 32) be granted for failure to prosecute and Defendants' Motion to Dismiss for Lack of Prosecution (ECF No. 42) be denied as moot.
II. Report
A. Relevant Procedural History
Plaintiff Brian Nelson (“Nelson”) initiated this civil rights action on January 27, 2021, while he was housed at the Westmoreland County Prison. The Court denied his motion for leave to proceed in forma pauperis because he failed to submit the required documents and the case was administratively closed. It was later reopened after Nelson filed the necessary documents and his Complaint was docketed on March 4, 2021. (ECF No. 6.)
After Defendants were served, they moved to dismiss the Complaint. (ECF No. 15.) Although an order was issued requiring Nelson to respond to the motion to dismiss by July 15, 2022, this order and two subsequent orders further extending the deadline for his response were returned as undeliverable as addressed. It was subsequently determined by the Court that Nelson was no longer incarcerated at the Westmoreland County Prison and was incarcerated at SCI Camp Hill. Nelson failed to advise the Court of his change of address, however. Thereafter, Nelson failed multiple times to respond to orders mailed to him at SCI Camp Hill that extended his deadline for responding to the motion to dismiss. (ECF Nos. 23; 25; 27.) He was later transferred to SCI Forest.
Nelson neither responded nor requested any further extensions. He also failed to comply with multiple orders directing him to complete an election form either consenting to the jurisdiction by a Magistrate Judge or electing to have a District Judge assigned to the case. Instead, on November 22, 2021, he filed an Amended Complaint. (ECF No. 28.)
Defendants again filed a motion to dismiss on December 3, 2021. (ECF No. 32.) The Court ordered Nelson to respond to the motion by January 5, 2022. (ECF No. 34.) Nelson subsequently filed a motion to appoint counsel (ECF No. 36), on December 17, 2021, that was denied on December 22, 2021. (ECF No. 37.) After Nelson failed to timely file a response to the motion to dismiss, request an extension of time to do so, or otherwise communicate with the Court, an order was issued on January 19, 2022, that directed Nelson by February 18, 2022, to either file his response to the pending motion to dismiss or show cause why this action should not be dismissed for failure to prosecute. Nelson was further advised that his failure to comply with this Order would be construed as indicating his desire not to continue prosecution of this case.
Since that time, Nelson has not responded to the motion to dismiss, requested an extension of time, or otherwise communicated with the Court.
After filing their motion to dismiss for failure to state a claim, Defendants subsequently filed a motion to dismiss based upon Nelson's failure to prosecute.
B. Discussion
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim, and under this Rule, a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order. See, e.g., Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994). In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper under Rule 41(b):
(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.Id. at 868 (emphasis omitted).
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). None of the Poulis factors are dispositive and not all of them need to weigh in favor of dismissal before dismissal is warranted. See Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Rather, the Court must “properly consider and balance” each of the six factors based on the record. Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). It must also analyze the factors in light of the “strong policy favoring decisions on the merits.” Id.
The first, third, and fourth Poulis factors-the extent of Nelson's personal responsibility, his history of dilatoriness, and whether his conduct is willful-each weigh heavily in favor of dismissal. Since the initiation of this lawsuit, Nelson has repeatedly failed to maintain a current address with the Court, has failed to file required documents, has not followed the Court's directions, and has ignored multiple court orders. Nelson's last communication to the Court was on December 17, 2021, almost five months ago. He is proceeding pro se and is solely responsible for his own conduct. See, e.g., Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002); Winston v. Lindsey, No. 1:09-cv-224, 2011 WL 6000991, *2 (W.D. Pa. Nov. 30, 2011); see also Quadr v. Overmyer, 642 Fed.Appx. 100, 103 (3d Cir. 2016) (the district court correctly concluded that the plaintiff's actions were willful when he would not accept mail from the court, failed to respond to a motion to dismiss, and repeatedly missed deadlines).
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. “Examples of prejudice include ‘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, 29 F.3d at 874 (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). Although this factor does not weigh heavily in favor of dismissal at this time, it is not neutral either. Nelson's consistent refusal to comply with Court orders and his failure to communicate with the Court frustrates and delays resolution of his claims against the defendants. See Mack v. United States, No. 3:17-cv-1982, 2019 WL 1302626, *1 (M.D. Pa. Mar. 21, 2019) (plaintiff's continued failure to communicate with the district court and inaction “clearly prejudices the Defendants who seek a timely resolution of the case.”). Thus, the second Poulis factor weighs at least slightly in favor of dismissal.
The fifth Poulis factor requires the Court to consider the effectiveness of sanctions other than dismissal. Under the circumstances presented here, where Nelson has failed repeatedly to comply with court orders, has not communicated with the Court since December 2021, and appears to have abandoned the litigation, it is unlikely that alternative sanctions would be effective. Bowie v. Perry, No. 1:19-cv-13, 2019 WL 2412488, *2 (W.D. Pa. May 13, 2019) (“alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court.”), report and recommendation adopted, 2019 WL 2410796 (W.D. Pa. July 7, 2019). As such, this factor weighs in favor of dismissal.
When evaluating the sixth Poulis factor, the Court must consider the potential merits of Nelson's claims. A claim will be deemed meritorious “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not the summary judgment standard, is applicable in the Poulis analysis. Briscoe, 538 F.3d at 263. Nelson's failure to prosecute this action makes it difficult to determine whether the First and Eighth Amendment claims asserted against Defendants has, or could have, potential merit. Thus, this final Poulis factor does not weigh in favor of dismissal. However, as set forth above, none of the Poulis factors are dispositive and not all of them need to be met for a district court to find that dismissal is warranted.
III. Conclusion
In conclusion, the Poulis factors weigh in favor of dismissal. The Court cannot properly control its docket, move this action forward, and properly protect the rights of all parties because Nelson has failed to comply with Court orders and has not communicated with the Court in more than five months. Therefore, it is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 32) be granted for failure to prosecute and Defendants' Motion to Dismiss for Lack of Prosecution (ECF No. 42) be denied as moot, and that the Court dismiss this civil action with prejudice.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, any party is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).