Opinion
1:20-cv-264
07-28-2021
TONY LYNN RICHARDSON, JR., Plaintiff v. ERIE POLICE DEPARTMENT, Defendant
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is hereby recommended that this action be dismissed due to Plaintiff's failure to prosecute.
II. Report
A. Background
Plaintiff Tony Lynn Richardson initiated this civil rights action on September 10, 2020, by filing a motion for leave to proceed in forma pauperis. ECF No. 1. In the accompanying complaint, which has been lodged but not yet filed, Plaintiff asserted that unidentified police officers failed to adequately treat his medical condition while effectuating an arrest. ECF No. 13. The only defendant named in the complaint was the Erie Police Department. Id.
On March 25, 2021, the Court notified Plaintiff that, because he had applied for leave to proceed in forma pauperis, his complaint was subject to the screening provisions set forth in 28 U.S.C. § 1915(e). See ECF No. 4. Pursuant to that statute, the Court performed an initial screening of Plaintiff's complaint and noted that the only named defendant, the Erie Police Department, “is not a ‘person' for purposes of § 1983 and therefore is not a proper defendant in a § 1983 action.” Gamon v. Bell, 2020 WL 3412683, at *6 (M.D. Pa. June 22, 2020) (collecting cases). Rather than recommend that this action be dismissed pursuant to § 1915(e), the Court instead offered Plaintiff an opportunity to file an amended complaint on or before April 30, 2021. ECF No. 4. The Court cautioned him that failure to do so “may result in a recommendation that this matter be dismissed.” Id.
The Court mailed the Order to Plaintiff at his address of record on March 25, 2021. On April 16, 2021, the Order was returned as undeliverable. It appears that Plaintiff is no longer incarcerated at the Erie County Prison and has failed to keep his address current with the Court. Consequently, Plaintiff never filed an amended complaint.
B. Analysis
The Court of Appeals for the Third Circuit has set out a six-factor balancing test to guide a court in determining whether a case or claim should be dismissed for failure to prosecute. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 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 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. 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), and not all of the six factors need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Rather, the court must “properly consider and balance” each of the six factors based on the record. See Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868).
As recently emphasized by the Court of Appeals, “dismissal with prejudice is an ‘extreme' sanction” that should be employed as a “last, not first, resort.” Hildebrand, 2019 WL 1783540, at *3 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). Close calls should “be resolved in favor of reaching a decision on the merits.” Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, the Court of Appeals “has not hesitated to affirm the district court's imposition of sanctions, including dismissals in appropriate cases.” Id. (citing Poulis, 747 F.2d at 867 n. 1).
Turning to the first Poulis factor, the Court must consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams, 29 F.3d at 873 (“[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.”). Since initiating this action, Plaintiff has failed to maintain his current address with the Court or take any other steps to prosecute his claims. Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including his failure to update his address and respond to orders from the Court. See, e.g., Colon v. Karnes, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012) (“Plaintiff is proceeding pro se, and thus is responsible for his own actions.”). This factor weighs heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[, ] the excessive and possibly irremediable burdens or costs imposed on the opposing party, ” Adams, 29 F.3d at 874, and “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). Although this factor does not weigh heavily here, the Court notes that Plaintiff's “failure to communicate with the Court and continued inaction frustrates and delays resolution of this action” by preventing Defendant from receiving a timely adjudication of his 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.”).
The third Poulis factor weighs strongly in favor of dismissal. Plaintiff has failed to engage with the Court or take any steps to pursue his claims. Despite his obligation to do so, Plaintiff has failed to maintain a current address, preventing him from receiving the Court's orders. This conduct is enough to establish a history of dilatoriness. See Mack, 2019 WL 1302626, at *2 (“Mack 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.”).
With respect to the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. Although Plaintiff is solely responsible for maintaining a current address, it is unclear whether his failure to do so is the result of an intentional abandonment of his claims or simple neglect. Under such circumstances, the Court concludes that this factor is neutral.
The fifth factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that alternative, monetary sanctions are ineffective where the Plaintiff is indigent. See, e.g., Brennan v. Clouse, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) (“Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.”) (citing Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002)). Moreover, alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court. Mack, 2019 WL 1302626, at *2 (noting that the court was “incapable of imposing a lesser sanction” on a plaintiff who refused to participate in his own lawsuit). As such, this factor weighs heavily in favor of dismissal.
Finally, the Court must consider the potential merit of Plaintiff'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. To date, the only pleading filed in this action asserted claims against an entity that was not amenable to suit under § 1983. It is unclear whether Plaintiff would have been able to cure that defect by way of amendment. Accordingly, this factor tilts in favor of dismissal.
On balance, the Court concludes that five of the six Poulis factors support dismissal, with the remaining factor being neutral. While the Court is mindful of this Circuit's strong policy in favor of deciding cases on the merits, such a resolution is impossible where the plaintiff declines to participate in his own lawsuit. Consequently, the Court concludes that the extreme sanction of dismissal is supported by the Poulis factors and the record at hand.
III. Conclusion
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Plaintiff's failure to prosecute.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen days. Any party opposing the objections shall have fourteen days to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).