Opinion
CIVIL 1:21-CV-02083
10-14-2022
ANTONIO VALENTINO FARRELL, Plaintiff, v. COUNTY PRISON COMMANDING SGT. ON 3/21/2021, et al., Defendants.
REPORT AND RECOMMENDATION
Susan E. Schwab, Chief United States Magistrate Judge
I. Introduction.
The plaintiff in this case appears to have abandoned this action as evidenced by his failure to prosecute it. Accordingly, after analyzing the applicable factors, we recommend that the case be dismissed.
II. Background.
Plaintiff Antonio Valentino Farrell (“Farrell”) commenced this action pro se on December 13, 2021, by filing a complaint, (doc. 1), which he later supplemented on December 20, 2021, (doc. 4). The complaint identifies as defendants: (1) County Prison Commanding Sergeant on 3/21/2021 (“Sergeant”), (2) Commanding Lieutenant on 3/21/2021 (“Lieutenant”), (3) Lieutenant Deford (“Deford”), (4) Nurse Alora (“Alora”), (5) Correctional Officer Anderson (“Anderson”), and (6) Commanding County Prison Warden (“Warden”). Doc. 1.
Farrell did not pay the filing fee when he filed the complaint, nor did he file an application to proceed in forma pauperis. See docket generally. On December 14, 2021, this court thus ordered Farrell to pay the filing fee or file a signed application to proceed in forma pauperis within 30 days to avoid dismissal of his case. Doc. 3. Farrell complied with this order by filing an application to proceed in forma pauperis on December 28, 2021, (doc. 6), which we granted on January 6, 2022, and mailed to Farrell per standard procedures, (doc. 8). On January 19, 2022, this order was returned to us via mail with the notation “Released to street 12/22/21, No longer at SCI Houtzdale.” Doc. 9. It became apparent that Farrell had failed to keep the court informed of his address.
On January 25, 2022, we issued an order requiring Farrell to show cause by February 22, 2022, why the action should not be dismissed. Doc. 10. We warned Farrell that failure to show cause may lead this court to recommend the dismissal of this lawsuit due to abandonment. Id. On February 17, 2022, this order was also returned via mail with the annotation “NOT HERE[.]” Doc. 12. Farrell has not responded to the show-cause order, nor has he contacted the court to update his address.
III. Discussion.
Because Farrell has failed to participate in this case and has abandoned this action, we recommend that the court dismiss this action pursuant to Fed.R.Civ.P. 41(b).
The court may dismiss an action under Fed.R.Civ.P. 41(b) if the plaintiff fails to prosecute a case or to comply with court rules or court orders. Even though dismissal is an available sanction, it is a drastic sanction that “should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). In other words, “cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019).
Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the court and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). But that discretion, while broad, is governed by the following factors, commonly referred to as the Poulis factors, which the court must balance in deciding whether to dismiss a case:
(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.Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). No single factor is dispositive, Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008), and each factor need not be satisfied for the court to dismiss an action, Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). In this case, an assessment of the Poulis factors weighs in favor of dismissing this action.
The first Poulis factor is the extent of the party's personal responsibility. A pro se litigant is personally responsible for failure to comply with the court's rules and orders. In this case, because Farrell is proceeding pro se, he is responsible for his failure to keep the court informed of his address and his failure to respond to the show-cause order.
The second Poulis factor is prejudice to the adversary. Examples of prejudice are “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.” Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. Ware, 322 F.3d at 222. “[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Id. In this case, Farrell's failure to participate in this case frustrates and delays resolution of this action. Such a failure to litigate prejudices the defendants, who are seeking a timely resolution of the case.
The third Poulis factor is a history of dilatoriness. “[C]onduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness.'” Briscoe, 538 F.3d at 261. But “[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders.” Adams v. Trs. Of N.J. Brewery Emps. Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). A “party's problematic acts must be evaluated in light of [his] behavior over the life of the case.” Id. at 875. In this case, Farrell has not updated the court on his address despite it evidently changing in December 2021. He also has failed to respond to the order to show cause why this case should not be dismissed. He thus has a history of dilatoriness.
The fourth Poulis factor is whether the conduct was willful or in bad faith. “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Here, Farrell's failure to keep the court informed of his address and his failure to respond to the show-cause order lead to an inference that he has willfully abandoned this case.
The fifth Poulis factor is the effectiveness of alternate sanctions. Dismissal is a sanction of last resort, and it is incumbent upon a court to explore the effectiveness of lesser sanctions before ordering dismissal. Poulis, 747 F.2d at 868. Farrell is proceeding pro se and in forma pauperis, and there is no evidence to support a reasonable inference that he would be able to pay monetary sanctions. Monetary sanctions, therefore, would not be effective in this case. Moreover, Farrell's failure to keep the court informed of his address and his failure to respond to the show-cause order to an inference that further orders to him would not be effective. In this case, no sanction short of dismissal would be effective.
The sixth and final Poulis factor is the meritoriousness of the claim. In this inquiry, a claim will be deemed meritorious when the allegations of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. Assuming for the sake of argument that Farrell's claims are meritorious, consideration of this factor cannot save his case, since he is now wholly noncompliant with his obligations as litigants and the case cannot reasonably proceed without his participation.
In sum, the Poulis factors weigh in favor of dismissal. Farrell has abandoned this action. We thus recommend that the court dismiss the case.
IV. Recommendations.
Based on the foregoing, we recommend that the court dismiss this action in accordance with Fed.R.Civ.P. 41(b).
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.