Opinion
Civil Action 23-604
02-06-2024
DAVID FRANCIS BLAKE, Plaintiff, v. H. ENTERO, MEDICAL DIRECTOR; R. SOLOMAN, MCD. SERVICES; A. MILLER, NURSING SUPERVISORS; E. SIMPSON, HEALTH CARE ADMIN, Defendants.
Re: ECF No. 9
Hon. Robert J. Colville United States 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 with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure.
II. REPORT
Plaintiff David Francis Blake (“Plaintiff') initiated this matter by submitting a Complaint for Violation of Civil Rights (“Complaint”), ECF No. 1, without payment of the filing fee or a motion for leave to proceed in forma pauperis (“IFP”). At the time of filing, Plaintiff was a state prisoner incarcerated at the State Correctional Institution at Greene (SCI-Greene) in Waynesburg, Pennsylvania. IFP status was granted on April 28,2023. ECF No. 8. The Complaint was formally filed the following day. ECF No. 9.
On May 3, 2023, this Court issued a Report and Recommendation recommending that the Complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii), with leave to amend certain claims. ECF No. 11 at 1. Plaintiff did not file Objections. On November 27, 2023, District Judge Robert J. Colville issued an Order adopting the Report and Recommendation, and giving Plaintiff a deadline of December 18, 2023 to file and amended complaint. ECF No. 12 at 2.
As of this date, Plaintiff has failed to submit an amended complaint; nor has he moved for an extension of time in which to do so. As a result, the Court considers appropriate action.
A district court has the inherent power to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a plaintiffs 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. Thus, he alone is responsible for prosecuting this case and complying with orders of this Court. Plaintiff is solely responsible for failing to file an amended complaint in response to Judge Colville's Order. ECF No. 12.
(2) Prejudice to the adversary
No Defendant has been served with the Complaint. There is no indication that any Defendant has been prejudiced unfairly by Plaintiffs conduct.
(3) A history of dilatoriness
Plaintiff has refused to file an amended complaint despite being ordered to do so. 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 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
For the reasons stated in the Report and Recommendation, ECF No. 11, as were adopted by Judge Colville, ECF No. 12, Plaintiff has not submitted a meritorious claim for relief.
Because five of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute. Additionally, in light of the Poulis analysis as a whole, the fact that this Court already has issued a Report and Recommendation addressing Plaintiffs claims, and Plaintiff failed to amend when leave to do so was granted, dismissal with prejudice is warranted.
III. CONCLUSION
Based on the reasons set forth above, it respectfully is recommended that this case be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 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 within fourteen days, or seventeen days for unregistered ECF Users. 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). 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.