Opinion
Civil Action 23-1046
02-06-2024
TYRONE A. BURSE, Plaintiff, v. COMMONWEALTH OF PA et al., Defendants.
HON. ARTHUR J. SCHWAB, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 1
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 Tyrone Burse (“Plaintiff”) was, at the time of filing, a prisoner held at the Allegheny County Jail (“ACJ”) in Pittsburgh, Pennsylvania. This case was initiated with the submission to the Court of a filing entitled “Rule 206 Costs, Proceeding In Forma Pauperis” (“IFP”) and Complaint on June 12, 2023. ECF Nos. 1 and 1-1.
On July 28, 2023, this Court issued a Deficiency Order, ECF No. 2, identifying various filing deficiencies under the Federal Rules of Civil Procedure, statutory requirements, and our Local Rules and practices. Plaintiff was ordered to cure these deficiencies by August 28, 2023, and was warned that failure to do so would result in dismissal of this case for failure to prosecute. Id. at 2. A copy of the Deficiency Order was mailed to Plaintiffs address of record. Id.
Plaintiff responded to the Deficiency Order on August 10, 2023. ECF Nos. 4. In his response, Plaintiff failed to correct the identified filing deficiencies, and indicated that ACJ staff gave him only electronic copies of the Deficiency Order and attachments. Id. at 1. The undersigned re-mailed the Deficiency Order and attachments to Plaintiff and entered an order extending the deadline to cure the filing deficiencies until September 14, 2023. ECF No. 5.
Plaintiff did not respond, and an Order to Show Cause was issued on October 10, 2023. ECF No. 6. Plaintiff was informed that failure to respond to the Order to Show Cause on or before October 31, 2023, would result in dismissal. Id. at 1. The Order to Show Cause was mailed to Plaintiffs address of record along with the Deficiency Order and attachments thereto. Id. at 2.
As of this date, Plaintiff has not responded to the Order to Show Cause, nor has he cured any of the filing deficiencies identified in the Deficiency Order. 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 follows.
(1) The extent of the party's personal responsibility.
Plaintiff is proceeding in this matter pro se, and alone is 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 Nos. 2 and 6.
(2) Prejudice to the adversary.
The filing fee has not been paid, leave to proceed IFP has not been granted, and the Defendants have not been served with the Complaint. There is no indication that Defendants have been prejudiced unfairly by Plaintiff s conduct.
(3) A history of dilatoriness.
Plaintiff has refused to correct the filing deficiencies identified in the Deficiency Order, or respond to the Order to Show Cause. This is sufficient evidence, in the 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 Plaintiffs conduct to date was the result of any “excusable neglect,” Poulis, supra. The conclusion that his failure to respond to the order of this Court 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.
Plaintiff has failed to allege facts supporting a cause of action upon which relief may be granted in the Complaint.
Because five 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 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.