Opinion
Civil Action 23-1684
02-06-2024
GREGORY JOSEPH DOWNIE; ARTHUR WHITAKER; JEREMY WINTERS; and RAYMOND BROWN, Plaintiffs, v. ZAKEN; BUZAS; KAPOLKA; and FOWLER, Defendants.
Marilyn J. Horan, 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
When this action was filed, Plaintiffs Gregory Joseph Downie, Arthur Whitaker, Jeremy Winters, and Raymond Brown (collectively, “Plaintiffs”), were held at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania. Plaintiffs initiated this case on September 20, 2023 with the submission of the Complaint, without payment of a filing fee or a motion for leave to proceed in forma pauperis (“IFP”). ECF No. 1. Plaintiffs allege the violation of their constitutional rights as the result of a single exposure to a loud bus ride from the State Correctional Institution at Smithfield (“SCI-Smithfield”).
On September 25, 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. Plaintiffs were ordered to cure these deficiencies by October 25, 2023, and were warned that failure to do so would result in dismissal of this case for failure to prosecute. Id. at 3. Copies of the Deficiency Order and attachments were mailed to each of the Plaintiffs. Id. at 3-4.
Plaintiffs did not respond to the Deficiency Order, and an Order to Show Cause was issued on December 1, 2023. ECF No. 3. Plaintiffs were advised that failure to respond to the Order to Show Cause on or before December 22, 2023, would result in dismissal of this case, kf at 1. The Order to Show Cause was mailed to each of the Plaintiffs. Id. at 2.
As of this date, Plaintiffs have not responded to the Order to Show Cause, cured any of the filing deficiencies identified in the Deficiency Order, or filed anything else in this case. Additionally, on December 8, 2023 and January 3, 2024, this Court received correspondence form the Pennsylvania Department of Corrections indicating that Plaintiff Whitaker and Plaintiff Brown, respectively, were no longer state prisoners. No Plaintiff has seen fit to provide an updated address for either individual.
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 Poulis factors follows.
(1) The extent of the party's personal responsibility.
Plaintiffs are proceeding in this matter pro se, and alone are responsible for prosecuting this case and complying with orders of this Court. Plaintiffs are 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 3.
(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. As such, there is no indication that Defendants have been prejudiced unfairly by Plaintiffs' conduct.
(3) A history of dilatoriness.
Plaintiffs have refused to respond to the Deficiency Order and the Order to Show Cause. Further, Plaintiffs have not filed anything in this case since the submission of the Complaint on September 20, 2023. ECF No. 1. Also, Plaintiffs Whitaker and Brown have not maintained current addresses with this Court. This is sufficient evidence, in this Court's view, to indicate that Plaintiffs do 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 their failure to respond to the orders of this Court is willful is inescapable.
(5) Alternative sanctions.
Plaintiffs currently are 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.
Plaintiffs have failed to plead a meritorious cause of action in the Complaint.
Because five of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Federal Rule of Civil Procedure 41(b) for failure to prosecute.
III. CONCLUSION
Based on the reasons set forth above, it respectfully is recommended that Plaintiffs' Complaint be dismissed, without prejudice to refiling, under 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.