Opinion
Civil Action 21-1032
11-01-2021
GERALD CONKLIN, Plaintiff, v. ALLEGHENY COUNTY and JUDGE BIGLEY, Defendants.
David S. Cercone, District Judge
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan United States Magistrate Judge
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that this case be dismissed with prejudice for Plaintiff's failure to prosecute as Plaintiff has failed to comply with the Court's Order dated August 23, 2021, which required him to amend his complaint, or comply with the Court's Order to Show Cause dated September 20, 2021, which required Plaintiff to show cause why this case should not be dismissed for his failure to do so.
II. REPORT
A. Procedural History
This case was initiated by the filing of a Motion for Leave to Proceed in forma pauperis (“IFP”) that was submitted by Plaintiff Gerald Conklin (“Plaintiff”) and docketed at the above action case number on August 4, 2021. (ECF No. 1.) That IFP Motion was granted by Order dated August 11, 2021, and Plaintiff's Complaint was docketed that same day. (ECF Nos. 2 & 3.) However, upon review, Plaintiff's Complaint was deemed deficient and so he was ordered to file an amended complaint by September 14, 2021. (ECF No. 4.) When no amended complaint was received, the Court subsequently ordered Plaintiff to show cause why this case should not be dismissed for his failure to prosecute and it warned him that if he failed to file his amended complaint by October 4, 2021 then it could result in the dismissal of this action without further notice. (ECF No. 5.) As of today, Plaintiff has not filed his amended complaint or otherwise shown cause for his failure to do so.
B. Discussion
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim, and, under this Rule, “a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order.” Qadr v. Overmyer, No. 15-3090, 642 Fed.Appx. 100, 102 (3d Cir. 2016) (per curiam) (citing Fed.R.Civ.P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (“The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b).”)
The Third Circuit Court of Appeals has stated that “a district court dismissing a case sua sponte ‘should use caution in doing so because it may not have acquired knowledge of the facts it needs to make an informed decision.'” Qadr, No. 15-3090, 642 Fed.Appx. at 103 (quoting Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008)). Before engaging in a sua sponte dismissal, “the district court ‘should provide the plaintiff with an opportunity to explain his reasons for failing to prosecute the case or comply with its orders.'” Id. (quoting Briscoe, 538 F.3d at 258).
By Order to Show Cause dated September 20, 2021, Plaintiff was advised that his failure to file an amended complaint by October 4, 2021 could result in the dismissal of this case without further notice. Plaintiff has been given ample opportunity to comply and has failed to do so.
1. The Poulis Factors
In Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper under Rule 41(b):
(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 the 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 (emphasis omitted). In balancing the Poulis factors, no single factor is dispositive, nor do all factors need to be satisfied to result in dismissal of the complaint. Briscoe v. Klaus, 538 F.3d at 263. However, in determining whether a dismissal is warranted, the Court must analyze the factors in light of the “strong policy favoring decisions on the merits.” Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019). The Third Circuit has emphasized that “dismissals with prejudice or defaults are drastic sanctions, termed ‘extreme' by the Supreme Court, ” and that they “must be a sanction of last, not first, resort.” Poulis, 747 F.2d at 867-68, 869 (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)). “Cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand, 923 F.3d at 132.
2. Application of the Poulis Factors
a. The extent of the party's personal responsibility.
“[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.” Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 873 (3d Cir. 1994). In determining personal responsibility for the delay, the Court must distinguish “between a party's responsibility for delay and counsel's responsibility.” Hildebrand, 923 F.3d at 133 (citing Poulis, 747 F.2d at 868). A plaintiff is not conjecturally responsible for her counsel's delay. Id. Any doubt as to personal responsibility should be resolved “‘in favor of reaching a decision on the merits.'” Id. at 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Here, Plaintiff is proceeding pro se, so the responsibility for failing to comply with Court orders is his alone. Thus, this factor weighs in favor of dismissal.
b. Prejudice to the adversary.
Prejudice to the adversary is a substantial factor in the Poulis analysis; but like any other factor, it is not dispositive. Hildebrand, 923 F.3d. at 134. “Relevant examples of prejudice include ‘the irretrievable loss of evidence[] [and] the inevitable dimming of witnesses' memories.'” Id. (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). A party is not required “to show ‘irremediable' harm for [this factor] to weigh in favor of dismissal.” Id. (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). If the opposition is unable to prepare “a full and complete trial strategy” then there is sufficient prejudice to favor dismissal. Id. (citation omitted).
Here, the Defendants in this case have not yet been served. However, with the passage of time, the ability to gather facts and documents to defend the case will diminish. Therefore, depending upon when Plaintiff chooses to comply with court orders, Defendants could suffer prejudice if the case were allowed to proceed. Thus, this factor weighs marginally in favor of dismissal.
c. A history of dilatoriness.
A history of dilatoriness is generally established by repeated “delay or delinquency.” Adams, 29 F.3d at 874. While once or twice is normally insufficient, this factor weighs in favor of dismissal where the plaintiff has a history of repeated delay. Hildebrand, 923 F.3d at 135 (citation omitted). In addition to repeated acts, “extensive” delay can also create a history of dilatoriness. Adams, 29 F.3d at 874. A “failure to prosecute” does not require that plaintiff take affirmative “steps to delay the trial … It is quite sufficient if [he/she] does nothing .… ” Id. at 875 (citation omitted).
“While extensive delay may weigh in favor of dismissal, ‘a party's problematic acts must be evaluated in light of its behavior over the life of the case.'” Hildebrand, 923 F.3d at 135 (quoting Adams, 29 F.3d at 875). Thus, where a plaintiff has not been previously delinquent the weight given to even a long delay should be mitigated. Id.
While Plaintiff does not have a history of dilatoriness, these proceedings are still in their infancy, Plaintiff has now failed to comply with two Court orders. This is sufficient evidence, in the Court's view, to indicate that Plaintiff no longer desires to proceed with this action. Thus, this factor weighs in favor of dismissal.
d. Whether the party's conduct was willful or in bad faith.
In determining if plaintiff's conduct constituted willful or bad faith, the “court should look for ‘the type of willful or contumacious behavior' that can be characterized as ‘flagrant bad faith,' such as [a case history of] failing to answer interrogatories for nearly a year and a half, demanding numerous extensions, ignoring admonitions by the court, and making false promises to correct delays.” Id. (citing Scarborough, 747 F.2d at 875 (citation omitted)). “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Although “[a] lengthy delay reflects ‘inexcusable negligent behavior,' id. at 876, . . . that behavior alone does not rise to the level of willfulness or bad faith.” Hildebrand, 923 F.3d at 135.
Finally, “[b]ecause the harsh sanction of dismissal should serve to deter bad faith or self-serving behavior, and because of our policy of favoring decisions on the merits, [in the absence of evidence] that the delay was not effectuated willfully or in bad faith, [this factor] should weigh against dismissal.” Id. at 136.
There is no indication on this record that Plaintiff's failure was the result of any excusable neglect. There is also no indication that Plaintiff did not receive the Court's orders, so a finding of willfulness for failing to comply with those orders is inescapable. Therefore, this factor weighs in favor of dismissal.
e. Effectiveness of sanctions other than dismissal.
A district court must thoroughly consider “alternative sanctions before dismissing a case with prejudice.” Id. (citing Briscoe, 538 F.3d at 262). The court should also provide an analysis of effectiveness sufficient “to honor [the] longstanding tradition of favoring decisions on the merits.” Id. In so doing, the court should be mindful that “[a]lternatives are particularly appropriate when the plaintiff has not personally contributed to the delinquency.” Poulis, 747 F.2d at 866 (citations omitted). “[A]lternative sanctions need only be effective toward mitigating the prejudice caused by dilatory behavior or delinquency.” Hildebrand, 923 F.3d at 136. They are not required to be “completely amelioriative.” Id.
Plaintiff is proceeding in forma pauperis in this case so it is unlikely that any sanction imposing costs or fees upon him would be effective. Therefore, the Court can see no alternative sanction that would be appropriate other than dismissal.
f. Meritoriousness of claim or defense.
“The standard for determining whether a plaintiff's claims are meritorious ‘is moderate.'” Adams, 29 F.3d at 876. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not a summary judgment standard, is applicable in a Poulis analysis. Id. at 869-70.
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” (Fowler [v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (citation omitted)]; see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18, (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
As best the Court can tell, Plaintiff's Complaint alleges Defendant Judge Bigley violated his rights when, on July 29, 2021, she denied Plaintiff's motion to extend his medical furlough in his criminal cases pending before the Court of Common Pleas of Allegheny County, Pennsylvania. In that motion to extend his medical furlough, Plaintiff claimed that the Allegheny County Jail was not able to properly meet his various medical needs and he provided letters from his doctors that expressed Plaintiff's health was in imminent danger if his dietary, medical and environment needs were not met by the jail. Judge Bigley denied that motion and also denied Plaintiff's subsequent request for reconsideration of that motion. In his Complaint, Plaintiff essentially requests that this Court overrule Judge Bigley and grant him a temporary stay so that he does not have to report back to jail.
This assumption is primarily based off what is stated in the exhibits that Plaintiff submitted with his Complaint since his Complaint itself does not provide sufficient allegations to inform the Court as to the basis of Plaintiff's claims or his entitlement to relief.
First, as a judge of the Commonwealth of Pennsylvania, Defendant Judge Bigley is shielded by Eleventh Amendment immunity to the extent she is sued in her official capacity. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.”) She is also shielded by absolute immunity “from liability for damages for acts committed within [her] judicial jurisdiction” to the extent she is sued in her individual capacity. Pierson v. Ray, 386 U.S. 547, 553-54 (1967); see also Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.'”) Here, Plaintiff has not alleged, and the exhibits attached to his Complaint do not demonstrate, that Judge Bigley acted in the “clear absence of all jurisdiction” when she denied Plaintiff's motion to extend his medical furlough.
Second, pursuant to Younger v. Harris, 401 U.S. 37 (1971), this Court would likely abstain from hearing Plaintiff's case anyway. See Marks v. Stinson, 19 F.3d 873, 882 (3d Cir. 1994) (“A federal court will only consider Younger abstention when the requested equitable relief would constitute federal interference in state judicial or quasi-judicial proceedings.”) Pursuant to what is commonly described as the Younger abstention doctrine, “federal courts [should] abstain in certain circumstances from exercising jurisdiction over a claim where resolution of that claim would interfere with an ongoing state proceeding.” Miller v. Mitchell, 598 F.3d 139, 145-46 (3d Cir. 2010) (citing Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005)). Here, the relief Plaintiff is seeking from this Court is the same relief that he was denied by Judge Bigley, and, it appears that Younger abstention would be appropriate because (1) there are ongoing state proceedings which involve Plaintiff that are judicial in nature, (2) the state proceedings implicate important state interests, and (3) the state proceedings afford an adequate opportunity for Plaintiff to raise his federal claims. See Lazaridis v. Wehmer, 591 F.3d 666, 670 (3d Cir. 2010) (citing Addiction Specialists, 411 F.3d at 408). Furthermore, it does not appear that “the state proceedings are being undertaken in bad faith or for purposes of harassment” or that “some other extraordinary circumstances exist” such that Younger abstention would not be appropriate. Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989).
For these reasons, Plaintiff's Complaint does not appear to set forth a meritorious claim such that it would survive a motion to dismiss. Accordingly, for this reason, this factor also weighs in favor of dismissal.
In sum, as the majority of the Poulis factors do weigh in favor of dismissal, it is recommended that this case be dismissed with prejudice.
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that this case be dismissed with prejudice for Plaintiff's failure to prosecute as Plaintiff has failed to comply with the Court's Order dated August 23, 2021, which required him to amend his complaint, or comply with the Court's Order to Show Cause dated September 20, 2021, which required Plaintiff to show cause why this case should not be dismissed for his failure to do so.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.