Opinion
C.A. No. 17-2 Erie
03-22-2017
JULIA CALIPO, Plaintiff v. ERIE COUNTY PRISON AND ASSOCIATES, Defendants.
District Judge Rothstein
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. RECOMMENDATION
It is respectfully recommended that this case be dismissed for Plaintiff's failure to prosecute. II. REPORT
A. Relevant Procedural History
On January 5, 2017, the Clerk received a pro se civil rights complaint from Plaintiff Julia Calipo, an inmate at the Erie County Prison in Erie, Pennsylvania; however, the complaint was not accompanied by either the required filing fee or a motion to proceed in forma pauperis ("ifp motion"). As a result, this Court issued an Order requiring Plaintiff to either pay the filing fee or file an ifp motion by February 20, 2017, or suffer a recommendation that this case be dismissed for Plaintiff's failure to prosecute [ECF No. 2]. This Order was returned to the Clerk on February 16, 2017, with the notation, "Return to Sender, Not Here." Consequently, this Court issued another Order requiring Plaintiff to file with the Clerk a written notice of her change of address by March 15, 2017, or suffer dismissal of this case for failure to prosecute. This Order was also returned to the Clerk, on February 23, 2017, with the same notation indicating that Plaintiff was no longer at the Erie County Prison. Since that time, Plaintiff has failed to notify this Court of her change of address, and has still not paid the required filing fee or filed an ifp motion.
B. Discussion
The United States Court of Appeals for the Third Circuit has set out a six-factor balancing test to guide a court in determining whether dismissal of a case is appropriate. Poulis v. State Farm Fire and 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. 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).
Applying the Poulis factors to the present matter, this Court recommends the dismissal of this case. For the last several months, Plaintiff has taken none of the necessary steps to prosecute this case against Defendants. In particular, Plaintiff has failed to comply with multiple Orders of this Court. Alternative sanctions, such as monetary penalties, are deemed inappropriate. Thus, this case should be dismissed due to Plaintiff's failure to prosecute.
In accordance with the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), and Fed.R.Civ.P. 72(b)(2), the parties are allowed fourteen (14) days from the date of service to file written objections to this report and recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file objections will waive the right to appeal. Brightwell v. Lehman, 637 F. 3d 187, 193 n. 7 (3d Cir. 2011).
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge Dated: March 22, 2017 cc: The Honorable Barbara Rothstein
United States District Judge