Opinion
1:21-CV-00165-RAL-SPB
05-03-2023
ANTHONY ADAMS, Plaintiff v. DEPARTMENT OF CORRECTIONS, LAUREN FAUNCE, SCI FOREST -LICENSED PRACTICAL NURSE, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that this action be dismissed due to Plaintiff Anthony Adams's failure to prosecute. It is further recommended that Defendant Lauren Faunce's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 28) be dismissed as moot.
II. Report
A. Background
Plaintiff Anthony Adams initiated this pro se civil rights action in the United States District Court for the Middle District of Pennsylvania on May 4, 2021. ECF No. 1. The District Court for the Middle District transferred the action to this Court pursuant to 28 U.S.C. §§ 1391(b) and 1406(a)). ECF No. 8. The Complaint, which was docketed on April 5, 2022, asserts an Eighth Amendment claim against the Pennsylvania Department of Corrections ("DOC”) and DOC Nurse Lauren Faunce based on allegations that Faunce sexually assaulted Davis on May 4, 2021, while he was incarcerated at the State Correctional Institution at Houtzdale. ECF No. 15. After granting Adams' motion to proceed in forma pauperis, the Court dismissed his claim against the DOC as legally frivolous pursuant to 28 U.S.C. § 1915(e), based on Eleventh Amendment immunity. ECF No. 16.
On November 10, 2022, Faunce moved to dismiss the claims against her pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 28. Four days later, the undersigned issued a Response Order directing Adams to file a response to Faunce's motion on or before December 14, 2022. ECF No. 30. On November 30, 2022, the Response Order was returned to the Court as undeliverable.
As of the date of this Report and Recommendation, Adams has not notified the Court of a change of address, responded to Faunce's motion, or taken any action to prosecute this action. According to the DOC Inmate/Parolee Locator, Adams was released on October 12, 2022. Inmate/Parolee Locator, Pennsylvania Department of Corrections, https://inmatelocator.cor.pa.gov/#/ (last visited Apr. 28, 2023). As more fully set forth herein, because Anthony Adams has failed to respond to the motion as ordered by the Court, notify the Court of his change of address, or otherwise indicate his intention to proceed with this litigation, his Complaint should be dismissed based on his failure to prosecute this action, and Faunce's motion to dismiss should be dismissed as moot.
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.”). Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including complying with the court's Response Order and notifying the Court of any change in his address. 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.”). See also Smith v. Pennsylvania Dep't of Corr., 2012 WL 4926808, at *2 (W.D. Pa. Oct. 16, 2012) (“During the pendency of any litigation, the parties are under a continuing obligation to keep the Court informed of their address.”). 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 Plaintiffs “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 also weighs in favor of dismissal. Plaintiff has failed to engage with the Court and take the actions necessary to pursue his claims. Without a current address for Plaintiff, the Court is unable to issue a show cause order upon him for his failure to fde a responsive to the pending motion to dismiss or warn him that his failure to comply with orders of the Court will result in a recommendation that this matter be dismissed for failure to prosecute. 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. While it is difficult to evaluate willfulness on the limited record available, Plaintiffs decision to refrain from alerting the Court of his current whereabouts suggests his disinterest in continuing to prosecute this case. Under such circumstances, the Court must conclude that Plaintiff has purposefully abandoned his case.
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 with whom the Court cannot communicate and 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. In this case, Plaintiff alleges that he was sexually assaulted by Faunce in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Although the record presently includes no evidentiary support for Plaintiffs allegations, if proven true, they would support a meritorious claim. See Ricks v. Shover, 891 F.3d 468, 473-75 (3d Cir. 2018). Thus, the sixth factor militates against dismissal.
On balance, the undersigned concludes that five of the six Poulis factors supports dismissal. While the undersigned 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. Here, Plaintiffs failures to notify the Court of his current address and to respond to the pending motion to dismiss his Complaint have prevented this case from progressing and denied the remaining Defendant a just and efficient resolution of the claim against her. Consequently, the undersigned concludes that the sanction of dismissal is necessary.
III. Conclusion
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Plaintiffs failure to prosecute and that Faunce's motion to dismiss be dismissed as moot.
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).