Opinion
Civil Action No. 19-116
10-30-2019
JOEL P. GALBIATI, Plaintiff, v. LIEUTENANT KULIGK, et al., Defendants.
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that this case be dismissed for failure to prosecute.
II. PROCEDURAL HISTORY
Plaintiff Joel P. Galbiati, an inmate at State Correctional Institutional ("SCI") Coal Township, initiated this pro se in forma pauperis prisoner civil rights action alleging lack of proper medical treatment at SCI-Greene, where he was previously incarcerated. (ECF No. 5).
Plaintiff was granted in forma pauperis status on May 1, 2019, and his complaint was docketed the same day. (ECF Nos. 4, 5). Subsequently, Plaintiff apprised the Court of his transfer to SCI Coal Township. (ECF No. 14). --------
On May 1, 2019, the Court ordered Plaintiff to file an amended complaint by May 31, 2019, because his Complaint did not comply with the Federal Rules of Civil Procedure. (ECF No. 6). In its Memorandum Order, the Court specifically advised Plaintiff of the Complaint's deficiencies and provided detailed instructions regarding the necessary pleading requirements. (Id.). Thereafter, Plaintiff requested, and was granted, three extensions of time to file an amended complaint. (ECF Nos. 8, 9, 10, 12, 15, 16). When the Court granted his third motion for an extension of time, it ordered Plaintiff to file an amended complaint by September 20, 2019, and advised him that no further extensions would be granted. (ECF No. 16). Plaintiff has neither amended his complaint by the deadline imposed by the Court nor sought any other form of relief since then.
Plaintiff has also failed to comply with the Court's September 11, 2019 Order instructing him to either authorize monthly payments from his inmate account by September 25, 2019, or withdraw this action. (ECF No. 18).
III. DISCUSSION
Under Federal Rule of Civil Procedure 41(b), a district court may dismiss an action sua sponte if a litigant fails to prosecute his case or to comply with a court order. Qadr v. Overmyer, 642 F. App'x. 100, 102 (3d Cir. 2016) (citing Fed. R. Civ. P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Tr. 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 because it may not have acquired knowledge of the facts it needs to make an informed decision.'" Qadr, 642 F. App'x. at 103 (quoting Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). Before engaging in 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).
In Poulis v. States Farm Fire & Cas. Co., 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.747 F.2d 863, 868 (3d Cir. 1984).
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, 538 F.3d at 263. 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 County, 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 (qouting National Hockey League v. Metropolitan 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.
A review and assessment of the Poulis factors weighs heavily in favor of dismissing this action.
The first factor to be assessed is 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, 29 F.3d at 873. Because he is proceeding pro se, Plaintiff's failure to prosecute is entirely attributable to him and therefore, he bears personal responsibility for the failure to meet the deadlines and obligations imposed by the Court.
Turning to the second factor, 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).
An assessment of this factor suggests that dismissal is appropriate because Plaintiff's failure to file an amended complaint and take other required action obviously delays the resolution of this action. See, e.g., Tillio v. Mendelsohn, 256 F. App'x. 509 (3d Cir.2 007) (failure to timely serve pleadings compels dismissal); Azubuko v. Bell National Organization, 243 F. App'x. 728 (3d Cir.2007) (failure to file amended complaint prejudices defense and compels dismissal).
The third factor, the history of dilatoriness on the plaintiff's part, also weighs against Plaintiff. A history of dilatoriness is generally established by repeated "delay or delinquency." Adams, 29 F.3d at 874. While once or twice 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.
On May 1, 2019, the Court ordered Plaintiff to amend his Complaint. Despite being given detailed instructions on how to do so, as well as three extensions of time, Plaintiff has not complied by filing an amended complaint. The most recent deadline set by the Court was more than a month ago, and Plaintiff has taken no action to amend, seek relief or otherwise advance this lawsuit, including his failure to authorize monthly payments from his inmate account by the imposed deadline.
In determining the fourth factor, i.e., whether 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. (quoting Scarborough, 747 F.2d at 875). "Willfulness involves intentional or self-serving behavior." Adams, 29 F.3d at 875. Although "[a] lengthy delay reflects 'inexcusable negligent behavior,' . . . that behavior alone does not rise to the level of willfulness or bad faith." Hildebrand, 923 F.3d at 135 (quoting Adams, 29 F.3d at 877). Finally, "[b]ecause the harsh sanction of dismissal should serve to deter bad faith or self-serving 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.
With respect to this factor the Court notes that while Plaintiff initially sought extensions of time to comply with court orders, he has failed to either comply or respond in any fashion to the Court's August 20, 2019 Order directing him to file an amended complaint by September 20, 2019, which also advised him that no further extensions would be granted. Further, he failed to comply or take any action in response to the September 11, 2019 Order directing him to complete an authorization form and either authorize monthly payments from his inmate account or withdraw this action no later than September 25, 2019. Therefore, the Court is compelled to conclude that Plaintiff's non-compliance is not accidental or inadvertent.
With respect to the fifth factor, which requires the court to consider the 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 analysis of alternative sanctions should be sufficiently detailed "to honor [the] longstanding tradition of favoring decisions on the merits." Id. 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.
In this case, Plaintiff's status as a pro se litigant who has been granted in forma pauperis status severely limits the ability of the Court to utilize lesser sanctions to ensure that this litigation progresses in timely a manner. Moreover, given the history of this matter, it does not appear than a lesser sanction is appropriate or possible given Plaintiff's failure to comply with court orders and deadlines. Indeed, the Third Circuit has recognized that lesser sanctions may not be an effective alternative in cases involving pro se in forma pauperis litigants who do not comply with court orders. Briscoe, 538 F.3d at 262-63.
The final factor to be considered is an assessment of the meritoriousness of Plaintiff's claims. "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.
When considering pro se pleadings, a 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, 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).
At this juncture of the proceedings, the Court is unable to evaluate this factor. Therefore, this factor neither weighs for or against dismissal.
In summary, five of the six Poulis factors weigh in favor of dismissal. Plaintiff has ignored multiple orders of the Court and failed to provide any response or information that would account for failure to advance this litigation. He bears personal responsibility for his failure to do so, has delayed resolution of this action and engaged in dilatory and non-compliant behavior that does not appear to be accidental or inadvertent. Given this conduct and his pro se status, a lesser sanction is not warranted given Plaintiff's failure to comply with court orders and deadlines. Therefore, dismissal is warranted.
IV. CONCLUSION
In conclusion, for the reasons set forth herein, it is respectfully recommended that this action be dismissed for failure to prosecute.
In accordance with the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), and Fed. R. Civ. P. 72(b)(2), 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 the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file objections will waive the right to appeal. Brightwell v. Lehman, 637 F. 3d 187, 193 n.7 (3d Cir. 2011). Dated: October 30, 2019
/s/_________
PATRICIA L. DODGE
United States Magistrate Judge Service by regular U.S. mail upon: Joel P. Galbiati
NA-2779
SCI Coal Township
1 Kelley Drive
Coal Township, PA 17866