Opinion
Civil Action 23-1233
09-14-2023
ADAM TATUSKO, Plaintiff, v. JOSEPH DROHN, Defendant.
Christy Criswell Wiegand, District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Complaint lodged in the above-captioned case, ECF No. 1, be dismissed for failure to prosecute.
II. REPORT
Plaintiff Adam Tatusko (“Plaintiff”) brings this pro se action for alleged sexual harassment and terroristic threats suffered while incarcerated at the State Correctional Institution at Greene (“SCI - Greene”). ECF No. 1 Plaintiff names fellow prisoner Joseph Scott Drohn as the sole defendant (“Defendant”).
On July 7, 2023, this Court issued an Order directing Plaintiff to provide required documentation required to support his request to proceed in forma pauperis. ECF No. 2. On July 10, 2023, the Court received an apparent amendment to Plaintiff's complaint to add allegations that Defendant threatened Plaintiff's family. ECF No. 3. On July 19, 2023, the Court received correspondence from Plaintiff requesting that the Court “leave [him] the f[] alone.” ECF No. 4. The Court issued an Order to Show Cause on August 16, 2023, requiring Plaintiff to show cause why he failed to comply with the Court's Order to submit a certified copy of the trust fund account statement, an authorization form, and a completed Consent to Jurisdiction of Magistrate Judge form, and informing Plaintiff that the failure to respond may result in dismissal of this action for failure to prosecute. ECF No. 6. Plaintiff's response was due September 6, 2023. Plaintiff submitted a response on August 28, 2023, directing that the Clerk's Office “stop sending me legal mail before I send the feds on you for harassment.” ECF No. 7. At this stage of the litigation, it is apparent that Plaintiff wishes to abandon his claim.
The United States Court of Appeals for the Third Circuit has identified a six-factor balancing test to guide a court in determining whether a case should be dismissed for failure to prosecute. 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).
“Dismissal with prejudice is an ‘extreme' sanction” that should be employed as a “last, not first, resort.” Hildebrand, 923 F.3d at 132 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). A close case 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, “[dismissal is a sanction rightfully in the district courts' toolbox,” and the Third Circuit “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).
The first Poulis factor requires the Court to 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.”). Despite Plaintiff's receipt of an Order that required him to submit documentation to support his request to proceed in forma pauperis and his receipt of an Order to Show Cause related thereto, Plaintiff has failed to comply or provide just cause for his failure to do so. Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including his failure to 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. At this stage of the litigation, this factor weighs against Plaintiff because his case has been unable to proceed. Where a party fails to comply with the Court's orders, he frustrates and delays resolution of the action. 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 also weighs in favor of dismissal. Plaintiff's failure to adhere to this Court's order and Order to Show Cause demonstrates a pattern of unexcused delay. This conduct is sufficient to establish a history of dilatoriness.
With respect to the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. In this case, there is nothing on the docket to suggest that Plaintiff is not currently receiving the Court's orders. Therefore, his failure to comply with the Court's orders appears willful.
The fifth factor address the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that 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. Here, Plaintiff's claims against his fellow inmate do not appear to state a claim within the jurisdiction of the federal court. Thus, this factor weighs against Plaintiff.
On balance, the Court concludes each of the six Poulis factors support dismissal. While the Court is mindful of the 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 on the record presented here, the extreme sanction of dismissal is supported by the Poulis factors.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Plaintiff's failure to prosecute.
In accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(B) & (C), and Local Rule 72.D.2, Plaintiff is permitted to file written objections and responses thereto in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will constitute a waiver of any appellate rights. Siers v. Morrash, 700 F.3d 113, 116 (3d Cir. 1983). See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
cc:
The Honorable Christy Criswell Wiegand United States District Judge