Opinion
Civil Action 23-1933
03-19-2024
WILLIAM CUMMINGS, Plaintiff, v. G.K. REPOSKY, et al. Defendants.
MAUREEN P. KELLY, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
JOY FLOWERS CONTI, DISTRICT JUDGE
I. RECOMMENDATION
It is respectfully recommended that the above-captioned action be dismissed for failure to prosecute.
II. REPORT
Plaintiff William Cummings (“Plaintiff') brings this pro se action for claims arising from his incarceration at the State Correctional Institution at Fayette (“SCI - Fayette”). Plaintiff commenced this action on November 8, 2023, through a Motion for Emergency Hearing alleging that prison staff members failed to protect him from assault by other prisoners and identified him as a “snitch” in violation of his rights under the Eighth Amendment. ECF No. 1.
Plaintiff filed his Motion for Emergency Hearing without a motion to proceed in forma pauperis or a complaint. Thus, the Court issued a deficiency order on November 9,2023, directing Plaintiff to file the missing documents. Plaintiff responded by submitting a document entitled “Inquiry & Clarification to the Court,” ECF No. 4, in which he indicated that he does not want to proceed with his claims at this civil action number. Instead, he prefers to proceed in a prior-filed case at Civil Action No. 09-70. The Court construed Plaintiff's document as a motion to discontinue this action and to refile his initial motion for hearing at Civil Action No. 09-70. The 2009 action went to trial in January 2012, and a jury returned a verdict in favor of the Defendants, and against Plaintiff. See ECF No. 87, Cummings v. Reposky, No. 09-70 (W.D. Pa. filed Jan 13, 2012). In contrast, Plaintiffs Motion for Emergency Hearing in this matter is dated October 24, 2023, and relates to alleged bad acts dating from March 2023. ECF No. 1 at 1. He also attached an official inmate grievance dated October 13, 2023, related to conduct that occurred earlier in October 2023. ECF No. 1-1. Plaintiff does not allege any facts indicating that the claims at issue in Civil Action No. 09-70 and the present matter are at all related. Accordingly, Plaintiff s motion to discontinue this action was denied on November 30, 2023. ECF No. 5.
Plaintiff failed to file the documents necessary to continue this action. On February 6,2024, the Court issued an Order to Show Cause why this case should not be dismissed for Plaintiff s failure to comply with the Court's deficiency order entered on November 9, 2023. ECF No. 6. Plaintiff was provided a copy of the deficiency order and all documents referenced therein. On February 16, 2024, the Court received correspondence from staff at SCI-Fayette indicating that Plaintiff refused delivery of the Order to Show Cause. ECF No. 7. On February 20,2024, the Court remailed the Order to Show and documents referenced therein to provide Plaintiff a second opportunity to comply with the deficiency order. To date, Plaintiff has not complied, and this action has not progressed since the initial filing on November 8, 2023.
The United States Court of Appeals for the Third Circuit has identified a six-factor balancing test to guide a court in determining whether a case should be dismissed for failure to prosecute. Poulis v. State Farm Fire & 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. There is no “magic formula” or “mechanical calculation” to determine whether a case should be dismissed for failure to prosecute, Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992), and not all six factors need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Rather, the court must “properly consider and balance” each of the six factors based on the record. See Hildebrand v. Allegheny County, 923 F.3d 128,132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868).
“Dismissal with prejudice is an ‘extreme' sanction” that should be employed as a “last, not first, resort.” Hildebrand, 923 F.3d at 132 (quoting Nat'l Hockey League v, Metro Hockey Club, Inc., 427 U.S. 639,643 (1976), and Poulis, 747 F.2d at 867, 869)). A close case should “be resolved in favor of reaching a decision on the merits.” Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, “[d]ismissal is a sanction rightfully in the district courts' toolbox,” and the Third Circuit “has not hesitated to affirm the district court's imposition of sanctions, including dismissals in appropriate cases.” Id. (citing Poulis, 747 F.2d at 867 n. 1).
The first Poulis factor requires the Court to consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams, 29 F.3d at 873 (“[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.”). Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including his failure to respond to orders from the Court. See, e.g., Colon v. Kames, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012) (“Plaintiff is proceeding pro se, and thus is responsible for his own actions.”). This factor weighs heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[,] the excessive and possibly irremediable burdens or costs imposed on the opposing party,” Adams, 29 F.3d at 874, and “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). At this stage of the litigation, this factor weighs heavily against Plaintiff given because the “continued failure to communicate with the Court and continued inaction frustrates and delays resolution of this action.” See Mack v. United States, 2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019) (“[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case.”).
With respect to the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. In this case, there is nothing on the docket to suggest that Plaintiff is unable to respond to Court orders. Further, his rejection of mail from the Court is an intentional refusal to continue this action. Thus, his failure to comply with the Court's orders appears willful.
The fifth factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that monetary sanctions are ineffective where the Plaintiff is indigent. See, e.g., Brennan v. Clouse, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) (“Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.”) (citing Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002)). Moreover, alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court. Mack, 2019 WL 1302626, at *2 (noting that the court was “incapable of imposing a lesser sanction” on a plaintiff who refused to participate in his own lawsuit). As such, this factor weighs heavily in favor of dismissal.
Finally, the Court must consider the potential merit of Plaintiffs claims. A claim will be deemed meritorious “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. However, the Court cannot evaluate the potential merits of Plaintiff s claims because he has failed to respond to the deficiencies necessary to commence this action, including the filing of a Complaint.
On balance, the Court concludes that at least five of the six Poulis factors support dismissal, with the remaining factor (history of dilatory conduct) not weighed against nor in favor of dismissal. Nevertheless, “[n]ot all of these factors need be met for a district court to find dismissal is warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). While the Court is mindful of the strong policy in favor of deciding cases on the merits, such a resolution is impossible where the plaintiff declines to participate in his own lawsuit. Consequently, the Court concludes that on the record presented here, the extreme sanction of dismissal is supported by the Poulis factors.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Plaintiffs failure to prosecute.
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.