Opinion
1:20-cv-201
07-20-2022
JOSEPH FORSYTHE, Plaintiff v. PA DEPARTMENT OF CORRECTIONS, et al., Defendants
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is hereby recommended that Defendants' Motion to Dismiss for Lack of Prosecution [ECF No. 33] be GRANTED and that this action be dismissed.
II. Report
A. Background
Plaintiff Joseph Forsythe initiated this civil rights action on July 16, 2020, by submitting a proposed complaint and a motion for leave to proceed in forma pauperis. ECF No. 1. In his complaint, Plaintiff alleged that the Native American Harvest Feast menu provided by the Pennsylvania Department of Corrections (DOC) violated the First and Fourteenth Amendments to the United States Constitution. Id. Plaintiff maintained that the menu lacked critical food items that were essential to the harvest feast and that other religious groups were provided with more favorable religious accommodations for their own religious feasts. Id.
On September 28, 2020, the Court conducted an initial screening of Plaintiff's complaint pursuant to 28 U.S.C. § 1915 and determined that it was subject to dismissal because the only identified Defendant, the DOC, was immune from suit. See ECF No. 7 (noting that the Eleventh Amendment proscribes actions in the federal courts against states and state agencies, such as the DOC). Rather than recommend dismissal at that time, the Court offered Plaintiff an opportunity to amend his complaint to name the individual state actors responsible for the alleged violations. Id. Plaintiff submitted his amended complaint on October 13, 2020. ECF No. 12. That filing represents the last substantive action taken by Plaintiff in this case.
Plaintiff appears to have been released from prison on or about January 15, 2021. ECF No. 16.
On February 24, 2021, the Court ordered the parties to complete an election form either consenting to jurisdiction by the undersigned Magistrate Judge or electing to have a District Judge assigned to the case. ECF No. 20. Plaintiff did not respond.
Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 5, 2021. ECF No. 22. On March 9, 2021, the Court issued an order directing Plaintiff to respond to the motion to dismiss on or before April 8, 2021. ECF No. 24. Plaintiff failed to do so.
On October 26, 2021, the undersigned issued a Report and Recommendation (R&R) that Defendants' motion be granted in part and denied in part. ECF No. 26. Although the R&R advised the parties that objections could be filed until November 12, 2021, Plaintiff did not file any objections. The district court adopted the R&R on November 23, 2021. ECF No. 27.
On December 1, 2021, and January 14, 2022, the copies of the R&R and adopting Order that were mailed to Plaintiff at his address of record were returned as undeliverable. ECF No. 29. As a courtesy, the undersigned's courtroom deputy contacted the Plaintiff using the phone number on the docket and instructed him to update his address. Plaintiff did so shortly thereafter. ECF No. 30. However, he did not otherwise respond to the R&R or Order.
On February 2, 2022, Defendants filed the instant motion to dismiss for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. ECF No. 33. The Court ordered Plaintiff to respond to Defendants' motion on or before March 7, 2022. ECF No. 35. As of the date of this R&R, Plaintiff has not responded.
B. Analysis
The Court of Appeals for the Third Circuit has set out a six-factor balancing test to guide a court in determining whether a case or claim should be dismissed for failure to prosecute. See 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 of the 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).
As recently emphasized by the Court of Appeals, “dismissal with prejudice is an ‘extreme' sanction” that should be employed as a “last, not first, resort.” Hildebrand, 2019 WL 1783540, at *3 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). Close calls 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, the Court of Appeals “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).
Turning to the first Poulis factor, the Court must 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.”). Since filing his amended complaint over twenty months ago, Plaintiff has failed to take any steps to prosecute his claims. Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including his failure to file objections, responsive briefs, or otherwise acknowledge orders from the Court. See, e.g., Colon v. Karnes, 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). As noted by Defendants, “[t]heir defense of the case has been hindered by the delay to discovery, as the pertinent witnesses' recollections of the facts at issue are now several years old.” ECF No. 34 at 3. Defendants also note that “locating both relevant documents and the witnesses themselves becomes more difficult” as individuals “retire or change employment.” Id. Finally, the Court notes that Plaintiff's “failure to communicate with the Court and continued inaction frustrates and delays resolution of this action” by preventing Defendants from receiving a timely adjudication of their claims. 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.”). This factor weighs strongly in favor of dismissal.
The third Poulis factor also supports dismissal. Plaintiff has failed to engage with the Court or take any steps to pursue his claims. Despite his obligation to do so, Plaintiff failed to maintain a current address for several months, preventing him from receiving the Court's orders. Even after updating his address, Plaintiff disregarded at least two orders from the Court directing him to respond to Defendants' motions. This conduct is enough to establish a history of dilatoriness. See Mack, 2019 WL 1302626, at *2 (“Mack has established a history of dilatoriness through his failure to notify the Court of his whereabouts and failure to comply with Court Orders and rules.”).
With respect to the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. Because Plaintiff did not respond to Defendants' motion, it is unclear whether his failure to comply with Court orders is the result of an intentional abandonment of his claims or simple neglect. Under such circumstances, the Court concludes that this factor is neutral.
The fifth factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that alternative, 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 Plaintiff's 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. The Court notes here that, although a portion of Plaintiff's claims did survive a prior motion to dismiss, Defendants have raised a potentially dispositive affirmative defense, arguing that Plaintiff failed to administratively exhaust his claims before filing this lawsuit. See ECF No. 34 at 6. It is axiomatic that the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (the “PLRA”), requires a prisoner to exhaust any available administrative remedies before he may bring an action pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). Defendants have submitted an affidavit from Michael Bell, a Grievance Officer with the DOC, indicating that Plaintiff has never pursued a grievance pertaining to his religious beliefs to final review at the administrative level. Id. See also ECF No. 13-1. Based on this apparent lack of exhaustion, it appears unlikely that any of Plaintiff's remaining claims could support recovery at trial. Accordingly, this factor tilts in favor of dismissal.
In ordering Plaintiff to respond to Defendants' motion to dismiss, the Court advised Plaintiff that “the motion may be treated, either in whole or in part, as a motion for summary judgment under Federal Rule of Civil Procedure 56.” ECF No. 35 at 1. The Court included a copy of Rule 56 and instructed Plaintiff that he could include “opposing or counter-affidavits” in his response brief, if appropriate. Id. As noted above, Plaintiff filed no response.
On balance, the Court concludes that five of the six Poulis factors support dismissal, with the remaining factor being neutral. While the Court is mindful of this Circuit's 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 the extreme sanction of dismissal is supported by the Poulis factors and the record at hand.
III. Conclusion
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Plaintiff's failure to prosecute.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen days. Any party opposing the objections shall have fourteen days to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).