Opinion
Civil Action 22-254
10-13-2022
ISAIAH ANTHRIN BICKHAM, also known as Isaiah Bickham, Plaintiff, v. WARDEN ORLANDO L. HARPER; DEPUTY WARDEN ADAM SMITH, and MAJOR EDWARDS, Defendants.
Cathy Bissoon District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be dismissed without prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure.
II. REPORT
Plaintiff Isaiah Bickham (“Plaintiff”) is a state prisoner. Plaintiff's address of record with this Court indicates that he is incarcerated at the State Correctional Institution at Camp Hill (“SCI-Camp Hill”) in Camp Hill, Pennsylvania. However, a review of the Pennsylvania Department of Corrections' inmate locator tool indicates that Plaintiff currently is held at the State Correction Institution at Fayette (“SCI-Fayette”).
See http://inmatelocator.cor.pa.gOv/#/ (last visited Oct. 13, 2022).
This case commenced on February 10, 2022 with the receipt of Plaintiff's Complaint without the required filing fee or a motion for leave to proceed in forma pauperis. ECF No. 1. A Deficiency Order was issued on March 30, 2022. ECF No. 4. Plaintiff notified this Court of his change of address on April 14, 2022. ECF No. 5. The Deficiency Order was mailed to Plaintiff's new address on April 18, 2022. ECF No. 6.
On April 21, 2022, Plaintiff moved for an extension of time to respond to the Deficiency Order. ECF No. 7. That was granted the following day. ECF No. 8.
On May 16, 2022, Plaintiff submitted a second change of address notification. ECF No. 9. Thereafter, Plaintiff submitted some - but not all - of the missing paperwork identified in the Deficiency Order. Notably missing were a motion for leave to proceed in forma pauperis or the required filing fee.
On July 27, 2022, an Order to Show Cause was issued, informing Plaintiff of remaining outstanding deficiencies. ECF No. 12 at 1. Copies of outstanding forms - including this Court's form motion for leave to proceed in forma pauperis - were provided to Plaintiff along with the Order to Show Cause. Id.
As of this date, Plaintiff has failed to cure the deficiencies identified in the Deficiency Order. Most notably, Plaintiff has not paid the filing fee, or moved for leave to proceed in forma pauperis. Further, Plaintiff has failed to submit any response to the Order to Show Cause.
A district court has the inherent power to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a plaintiff's failure to prosecute or to comply with an order of court. Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). “Under our jurisprudence, the sanction of dismissal is reserved for those cases where the plaintiff has caused delay or engaged in contumacious conduct. Even then, it is also necessary for the district court to consider whether the ends of justice would be better served by a lesser sanction.” Id.
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the United States Court of Appeals for the Third Circuit set forth six factors to be weighed when considering whether dismissal of a case as a sanction for failure to prosecute or to obey pretrial orders. They are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure; (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. These factors must be balanced in determining whether dismissal is an appropriate sanction, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988).
Consideration of the factors listed above is as follows.
(1) The extent of the party's personal responsibility
Plaintiff is proceeding in this matter pro se, and is alone responsible for prosecuting this case and complying with orders of this Court. Plaintiff is solely responsible for failing to cure the identified deficiencies, as well as for failing to respond to the Order to Show Cause. ECF No. 12.
(2) Prejudice to the adversary
Leave to proceed IFP has not been granted, and no Defendant has been served the Complaint. There is no indication that any Defendant has been prejudiced unfairly by Plaintiff's conduct.
(3) A history of dilatoriness
Plaintiff has refused to pay the required filing fee or submit a motion for leave to proceed in forma pauperis, and has not responded to the Order to Show Cause of July 27, 2022. This is sufficient evidence, in this Court's view, to indicate that Plaintiff does not intend to proceed with this case in a timely fashion.
(4) Whether the party's conduct was willful or in bad faith
There is no indication on the record that Plaintiff's conduct with respect to paying the filing fee or proceeding in forma pauperis was the result of any “excusable neglect,” Poulis, supra. The conclusion that the failure is willful is inescapable.
(5) Alternative sanctions
Plaintiff currently is proceeding pro se, and there is no indication on the record that the imposition of costs or fees would likely be an effective sanction.
(6) Meritoriousness of the case
It is unclear at this early stage whether Plaintiff's claims have merit.
Because four of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute.
III. CONCLUSION
Based on the reasons set forth above, it respectfully is recommended that Plaintiff's Complaint be dismissed, without prejudice to refiling, under Rule 41.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections 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 waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).