Opinion
Civil Action 2:23-cv-00355
10-09-2023
ROBERT D. CRAVENER, SR., Plaintiff, v. CHASE MCCLISTER, et al, Defendant.
REPORT AND RECOMMENDATION OF RULE 41(b) DISMISSAL I. RECOMMENDATION
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons set forth below, it is respectfully recommended that this case be dismissed for failure to prosecute and for failure to comply with Court Orders.
II. PROCEDURAL HISTORY
On March 6, 2023, Plaintiff Robert D. Cravener, Sr. (“Plaintiff”), then an inmate of Armstrong County Jail (the “ACJ”), filed a Motion to Proceed in Forma Pauperis. ECF No. 1. That motion was denied (ECF No. 3) and Plaintiff filed a second Motion to Proceed in Forma Pauperis on April 12, 2023. ECF No. 4. That motion was granted (ECF No. 8) and Plaintiff's initial Complaint (an Exhibit to his March 6th Motion) and Amended Complaint (sent to the Court on April 19th) were sequentially docketed by the Clerk on April 21, 2023. ECF Nos. 10 and 12. Plaintiff's Complaint - naming Judge Chase McClister and various prosecutors, commissioners, probation and parole board officers, and the ACJ Warden as Defendants - challenges aspects of his criminal proceedings and seeks, essentially, a declaratory injunction ordering his release from custody and related damages. ECF No. 12. Plaintiff's Motion to Appoint Counsel (ECF No. 6) was denied without prejudice on April 24, 2023 (ECF No. 13) and
For the reasons set forth below, it is respectfully recommended that this case be dismissed for failure to prosecute and for failure to comply with Court Orders.
II. PROCEDURAL HISTORY
On March 6, 2023, Plaintiff Robert D. Cravener, Sr. (“Plaintiff”), then an inmate of Armstrong County Jail (the “ACJ”), filed a Motion to Proceed in Forma Pauperis. ECF No. 1. That motion was denied (ECF No. 3) and Plaintiff filed a second Motion to Proceed in Forma Pauperis on April 12, 2023. ECF No. 4. That motion was granted (ECF No. 8) and Plaintiff's initial Complaint (an Exhibit to his March 6th Motion) and Amended Complaint (sent to the Court on April 19th) were sequentially docketed by the Clerk on April 21, 2023. ECF Nos. 10 and 12. Plaintiff's Complaint - naming Judge Chase McClister and various prosecutors, commissioners, probation and parole board officers, and the ACJ Warden as Defendants -challenges aspects of his criminal proceedings and seeks, essentially, a declaratory injunction ordering his release from custody and related damages. ECF No. 12. Plaintiff's Motion to Appoint Counsel (ECF No. 6) was denied without prejudice on April 24, 2023 (ECF No. 13) and his June 28, 2023 Motion for Production of Documents (ECF No. 24) requesting documents from his criminal trial was denied. ECF No. 28. In late July, Plaintiff's Motion for Reconsideration (ECF No. 18) was granted in the form of this Court's July 27, 2023 text order (a) inviting additional submissions on unreasonable library access delays and (b) noting that in consideration of Plaintiff's allegations of limited law library access at the ACJ, the Court would grant related requests for necessary extensions. ECF No. 40.
Plaintiff was released from incarceration on August 6th, the Defendants' Motions to Dismiss were filed on August 7th, and by its Response/Briefing Schedule Order of August 8th,the Court directed Plaintiff to file his Briefs in Opposition on or before September 8th. ECF Nos. 45, 47 and 48. Eight (8) days later, Plaintiff filed his Notice of Change of Address to Tarentum, Pennsylvania. ECF No. 50. He did not provide any other filings to this Court thereafter, and on September 18, 2023 the Court issued its Order to Show Cause why this case should not be dismissed for Plaintiff's failure to prosecute, and provided Plaintiff a further opportunity to file responses to the pending Motions to Dismiss by sua sponte extension of his filing deadline to September 28th. The Court also noted that Plaintiff risked dismissal of this case if he failed to reply to its Order, and directed the Clerk to forward second copies of said Motions and Briefings to Plaintiff's Tarentum address - which the docket reflects was done that same day. ECF Nos. 51 and 52.
As of the date of this Report and Recommendation, more than two months after the filing of Defendants' Motions to Dismiss, a month after the original September 8, 2023 deadline for Plaintiff's responses thereto, and several weeks after the September 28th extended deadline, Plaintiff has continued to ignore the Court's Orders and failed to submit the required responses, and has filed no further documents/motions in pursuit of his claims in the case sub judice.
III. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim. It provides that:
[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.
A. Sua Sponte Dismissal
“Under Rule 41(b), 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 N.J. Brewery Emps. 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 [to ensure its] knowledge of the facts it needs to make an informed decision.'” Qadr v. Overmyer, 642 Fed.Appx. 100, 103 (quoting Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008)). And before rendering 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).
Here, Plaintiff has been advised - by the Court's September 18, 2023 Order to Show Cause - that, absent his affirmative indication of a desire to proceed with the litigation on or before September 28, 2023, the Court would recommend that the case be dismissed with prejudice. Plaintiff has failed to provide any response or information that would account for his failure to advance this action.
B. The Poulis Factors
In Poulis v. States 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 252, 263 (3d Cir. 2008). 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 Cnty., 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 Nat'l Hockey League v. Metro. 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.
C. Application of the Poulis Factors
1. 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, and any doubt as to personal responsibility should be resolved “‘in favor of reaching a decision on the merits.'” Id. at 133, 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Because Plaintiff is proceeding pro se, the responsibility of moving the case forward lies with him. Therefore, the first factor favors dismissal.
2. 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).
Defendants will be prejudiced if the case is permitted to linger without Plaintiff's participation in his action or prosecution of his claims. As the Courts expressly recognize, memories of witnesses fade with the lapse of time and other evidence may be lost. Because Defendants cannot fully defend claims that continue to be neglected by Plaintiff, the second factor also favors dismissal.
3. 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 across the course of the litigation 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 even a long delay should be mitigated. Id.
As reflected in the Procedural History, supra, Plaintiff diligently pursued his action during the initial months of April through July. However, following his release from the ACJ in early August (which provided the injunctive relief - i.e., release from confinement - sought in his Amended Complaint), Plaintiff has filed nothing other than his August 16th Change of Address and has remained unresponsive to this Court's Response/Briefing Schedule Order as well as to its subsequent Order to Show Cause. This marked change in Plaintiff's post-release conduct, particularly his continued delinquency in disregard of the aforesaid Orders, leads the Court to conclude that the third factor moderately favors dismissal.
4. 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 selfserving 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.
Although Plaintiff fulfilled his responsibility to notify the Court of his change of address, he did not fulfill his responsibility to file a substantive response to the pending Motions to Dismiss and has failed to take any other action for two (2) months. The Court prompted Plaintiff to move his case forward by its Order to Show Cause, expressly warned him of the risk of dismissal if he chose to ignore that Order, and took it upon itself to direct the Clerk's second mailing of Defendants' filings to Plaintiff's post-release, Tarentum address. Nonetheless, as Plaintiff's conduct falls short of “willful” or “bad faith” behavior, as defined above, the fourth factor moderately disfavors dismissal.
5. 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 ameliorative.” Id.
Here, Plaintiff is fully responsible for his delinquency. Given Plaintiff's post-release cessation of participation in his case, and the Court's last two Orders, it is unlikely that alternative sanctions would effectively either advance litigation on the merits or mitigate the prejudice being caused by Plaintiff's failure to move the case forward. The fifth factor thus moderately favors dismissal.
6. 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 has summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6) as follows:
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).
In addition, when considering pro se pleadings, the 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, however, 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 fairly noted in Defendants' Motions to Dismiss, Plaintiff has sued a plethora of individuals involved in his Allegheny County criminal court proceedings, alleging principally that his sentence was incorrectly calculated and he was therefore being, e.g. “falsely imprisoned”, and detained beyond the correct “maxed out” period of legal incarceration. On these grounds, Plaintiff alleged violation of his Constitutional rights and various torts by the Defendants and petitioned for release by this Court's declaratory injunction.
As Defendants' briefing makes clear, Plaintiff's claims likely run afoul of several well-established tenants. They note, for example, that: A plaintiff cannot issue a collateral attack on his criminal prosecution/sentencing, nor can he maintain a § 1983 civil rights action for damages in connection with an allegedly unlawful sentence unless that sentence has been invalidated. See Port Auth. Benevolent Ass'n v. Port Auth. of New York and New Jersey, 973 F.2d 169, 177 (3d Cir. 1991); Heck v. Humphrey, 512 U.S. 477 (1994). Absolute immunity may extend to prosecutorial and commissioner defendants. Imbler v. Pachtman, 424 U.S. 409, 418, 47 L.Ed.2d 128, 96 S.Ct. 984 (1976); Scicchitano v. County of Northumberland, 112 F.Supp.2d 293 (3d Cir. 2015). It may also extend to probation and parole board defendants where claims are grounded in their participation in ajudicatory actions. Wilson v. Rackmill, 878 F.2d 772 (3d Cir. 1989), and it extends to prison warden defendants where a plaintiff's claims are grounded in detainment on a facially valid order. Rivera v. Algarin, 350 Fed.Appx. 703, 709 (3d Cir. 2009).
Defendants also correctly observe that: Eleventh Amendment immunity may extend to the Defendants under the allegations of the Amended Complaint. The Defendants are likely protected from individual liability under the “objective reasonableness” standard of the doctrine of qualified immunity. Spuck v. Pennsylvania Board of Probation & Parole, 2012 WL 2974766, *3 (W.D. Pa. 2012). Plaintiff fails to state either a claim of municipal liability or the personal involvement requisite to his apparent claim of supervisory liability against multiple named Defendants. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978); Horne v. Kearny, 2011 WL 5869780 at *7 (M.D. Pa. Oct. 24, 2011), adopted by 2011 WL 5864035, affirmed by 499 Fed.Appx. 140 (3d Cir. 2012). See generally ECF No. 46 at 6-12.
Therefore, even liberally construed, pro se Plaintiff's Amended Complaint presents little facial plausibility of actionable claims. The sixth and final Poulis factor thus favors dismissal. IV. CONCLUSION
For the aforesaid reasons, the totality of the Poulis factors weigh in favor of dismissal. It is therefore respectfully recommended that this case be dismissed for failure to prosecute and for failure to comply with Court Orders.
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.