Opinion
Civil Action No. 18-1319
06-17-2019
CORY BERNARD WILLIAMS, Plaintiff, v. WILLIAM SCHOUPPE, Warden, et al., Defendants.
District Judge Arthur J. Schwab
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that this case be dismissed with prejudice for Plaintiff's failure to prosecute insofar as he has failed to notify the Court as to the change in his address.
II. PROCEDURAL HISTORY
This prisoner civil rights action was initiated by Cory Bernard Williams ("Plaintiff") with the filing of a Motion for Leave to Proceed in forma pauperis on October 2, 2018. (ECF No. 1.) That Motion was granted on October 5, 2018, and his Complaint was docketed later that same day. (ECF Nos. 2, 3.) Shortly thereafter, the Court entered an Order staying and administratively closing this case due to the lapse in appropriations and resulting federal government shutdown and Petitioner was informed that the case would be reopened when the shutdown ended. (ECF No. 5.) The stay was subsequently lifted and the case reopened by Court Order dated February 21, 2019. (ECF No. 6.)
After Plaintiff completed and submitted the service forms for the Defendants, the Court ordered the United States Marshal to serve the Complaint on May 2, 2019. (ECF No. 9.) Plaintiff was mailed a copy of the Court's Order, but it was returned to the Court three weeks later on May 29, 2019. (ECF No. 11.) The following day, the Court entered an Order to Show Cause why this case should not be dismissed for Plaintiff's failure to prosecute insofar as he had failed to provide the Court with an updated address. (ECF No. 12.) On June 11, 2019, that Order was returned to the Court with a handwritten note on the envelope stating that Plaintiff was "not here." (ECF No. 13.)
III. 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." Qadr v. Overmyer, No. 15-3090, 642 F. App'x 100, 102 (3d Cir. 2016) (per curiam) (citing Fed. R. Civ. P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) ("The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b).")
The Third Circuit Court of Appeals 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 v. Overmyer, No. 15-3090, 642 F. App'x 100 at 103 (quoting Briscoe, 538 F.3d at 258). Before engaging in a sua sponte dismissal, "the district 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).
By Order to Show Cause dated May 30, 2019, Plaintiff was advised that his failure to notify the Court of his current address by June 14, 2019 would result in the dismissal of this case without further notice. Having been given ample opportunity to comply with the Court's Order, Plaintiff has failed to notify the Court of the change in his address.
A. The Poulis Factors
In Poulis v. States Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit 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). In balancing the Poulis factors, no single factor is dispositive, nor do all factors need to be satisfied to result in dismissal of the complaint. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). However, in determining whether a dismissal is warranted, 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). The Third Circuit has emphasized that "dismissals with prejudice or defaults are drastic sanctions, termed 'extreme' by the Supreme Court," and that they "must be a sanction of last, not first, resort." Poulis, 747 F.2d at 867-68, 869 (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)). "Cases should be decided on the merits barring substantial circumstances in support of the contrary outcome." Hildebrand, 923 F.3d at 132.
B. Application of the Poulis Factors
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 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. Thus, this factor weighs 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. "Relevant examples of prejudice include 'the irretrievable loss of evidence[] [and] the inevitable dimming of witnesses' memories.'" Id. (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). A party is not required "to show 'irremediable' harm for [this factor] to weigh in favor of dismissal." Id. (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). If the opposition is unable to prepare "a full and complete trial strategy" then there is sufficient prejudice to favor dismissal. Id. (citation omitted).
Here, the Defendants have been served but not yet entered their appearance or had to prepare a responsive pleading to Plaintiff's Complaint. Therefore, as of today, the Defendants have suffered no prejudice.
3. A history of dilatoriness.
A history of dilatoriness is generally established by repeated "delay or delinquency." Adams, 29 F.3d at 874. 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).
"While extensive delay may weigh in favor of dismissal, 'a party's problematic acts must be evaluated in light of its behavior over the life of the case.'" Hildebrand, 923 F.3d at 135 (quoting Adams, 29 F.3d at 875). Thus, where a plaintiff has not been previously delinquent the weight given to even a long delay should be mitigated. Id.
Here, Plaintiff does not have a history of dilatoriness, but he has not notified the Court of the change in his 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." Id. (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 this Court's Order granting his Motion for Leave to Proceed in forma pauperis, 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. See ECF No. 2, p.3. The conclusion that his failure to do so is willful is inescapable. Therefore, this factor weighs in favor of dismissal.
5. Effectiveness of sanctions other than dismissal.
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.
Plaintiff is proceeding in forma pauperis in this case so it is unlikely that any sanction imposing costs or fees upon him would be effective. 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 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.
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." (Fowler [v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (citation omitted)]; see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18, (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
In his Complaint, Plaintiff alleges that Defendant Jennifer Monza, an employee and member of the treatment staff at the Beaver County Jail, was responsible for classifying him and when he told her that he "had problems with people from Aliquippa" she allegedly told him that there was nothing she could do unless Plaintiff told her their names. Plaintiff was subsequently attacked by "numerous inmates" after being placed on RHU status on A-pod.
Plaintiff states that he was again classified by Defendant Monza, and when asked whether he had any enemies in the jail, Plaintiff told her that he didn't know whether they were still there because he did not remember their names. Plaintiff was placed in C-pod but later moved to the Special Needs Unit ("SNU") after hearing that inmates were planning to attack him and notifying Sgt. Rader.
Next, Plaintiff states that two weeks after he was moved to the SNU Defendant Deputy Warden Ethel White placed him on administrative segregation and moved to the medical isolation unit. However, he was later returned to the SNU, although still on administrative segregation, after speaking to Sgt. Campbell and Lt. Cipola. He was later moved by Defendant Monza to the RHU without an explanation, losing all of his privileges including access to the law library and his one hour out of his cell on the weekends. When he requested to know why, he was told that it was "not up for debate" and later told that it was for his protection. Due to his housing situation, Plaintiff claims to have suffered depression and skipped seven straight meals. He eventually was determined to be suicidal by the nurse and placed on suicide watch in a "freezing cold cell" for five days. He states that during this time he was not allowed personal items, hygiene products, showers, visits, phone calls or mail, and that he was told by Defendant Warden William Schouppe that it was per jail policy. After he was cleared from suicide watch, he was returned to the RHU, but he claims that he was treated differently from another inmate who was also cleared from suicide watch on the same day and who was returned to the SNU.
Plaintiff raises the following claims against the Defendants: retaliation, discrimination/denial of equal protection, denial of access to law material, denial of the right to practice good hygiene, denial of the right to practice his religious faith, and denial of the right to send and receive mail. However, based on the allegations in the Complaint, it appears unlikely that any of Plaintiff's claims would survive dismissal, at least not without allowing him to file an Amended Complaint. Therefore, this factor, along with the majority of the Poulis factors, weighs in favor of dismissal.
IV. CONCLUSION
For the aforementioned reasons, it is respectfully requested that this case be dismissed for Plaintiff's failure to prosecute insofar as he has failed to notify the Court as to the change in his address.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: June 17, 2019.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Cory Bernard Williams
Beaver County Jail
6000 Woodlawn Blvd.
Aliquippa, PA 15001