Opinion
2:18-cv-1632
02-14-2020
BLAINE KOBY GHOLSON, Plaintiff, v. REBECCA ANDREWS and ZACHARY KENNEDY, Defendants.
District Judge Arthur J. Schwab
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the Court dismiss this civil action with prejudice based upon Plaintiff's failure to prosecute.
II. Report
A. Background
Plaintiff, Blaine Koby Gholson, is a Pennsylvania prisoner who is currently housed at SCI Houtzdale. He was housed at SCI Pine Grove from around March 2018 to late April 2019, and the events at issue in this action are alleged to have occurred there in July 2018. Plaintiff claims that the Defendants, both of whom are psychologists, failed to assist him in filing a criminal complaint against various prison individuals for their "on-going plot to kill the Plaintiff for money from a fraudulent insurance policy." According to the complaint, both Defendant Andrews and Defendant Kennedy refused to assist him in order to protect themselves and their colleagues from investigation and also to financially benefit from his death.
Defendants have filed their Answer and discovery is complete. Plaintiff made his last submission in this action on November 14, 2019 when he filed a motion to compel responses to certain discovery requests. On December 19, 2019, the Court issued two orders. The first order denied Plaintiff's motion to compel and advised him that his pretrial narrative was due by January 31, 2020. The second order set forth the schedule for Defendants' motion for summary judgment or pretrial narrative. On January 7, 2020, both orders were returned to the Court because Plaintiff refused to accept mail from the Court. That same day, the Court mail the orders to Plaintiff a second time. On January 13, 2020, the orders were returned to the Court with notification that Plaintiff refused to accept the Court's mail on multiple occasions.
On January 27, 2020, the Court issued an order directing Plaintiff to show cause by February 6, 2020 why this civil action should not be dismissed for failure to prosecute. The Court advised Plaintiff that the case cannot proceed if he continues to refuse to accept his mail and comply with Court orders. In that show-cause order, Plaintiff was expressly warned that if he again refused to accept delivery of the Court's mail, the undersigned would recommend that this case be dismissed.
Plaintiff did not file his pretrial narrative which, as set forth above, was due by January 31, 2020. Of course, one of the consequences of his deliberate refusal to accept mail from the Court is that he will not be aware of Court-imposed deadlines.
On February 13, 2020, the Court's mail containing the show-cause order was returned to the Court with a notation on the envelope that Plaintiff refused to accept the Court's mail. Therefore, there is every indication that Plaintiff has abandoned his prosecution of this case.
B. Discussion
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim, and under this Rule, a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order. See, e.g., Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994). In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), the 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.Id. at 868 (emphasis omitted).
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). None of the Poulis factors are dispositive and not all of them need to weigh in favor of dismissal before dismissal is warranted. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Rather, the Court must "properly consider and balance" each of the six factors based on the record. Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). It must also analyze the factors in light of the "strong policy favoring decisions on the merits." Id.
The first and fourth Poulis factors—the extent of Plaintiff's personal responsibility and whether his conduct is willful—each weigh heavily in favor of dismissal. Plaintiff is proceeding pro se and is solely responsible for his own conduct. See, e.g., Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002); Winston v. Lindsey, No. 1:09-cv-224, 2011 WL 6000991, *2 (W.D. Pa. Nov. 30, 2011). Additionally, prior to late December 2019, Plaintiff had never refused mail from the Court, responded to Court orders, filed his own motions, and responded to motions filed by Defendants. Under the circumstances, the Court must conclude that his decision to no longer do any of those things is intentional. See, e.g., Quadr v. Overmyer, 642 F. App'x 100, 103 (3d Cir. 2016) (the district court correctly concluded that the plaintiff's actions were willful when he would not accept mail from the court, failed to respond to a motion to dismiss, and repeatedly missed deadlines). Indeed, Plaintiff's repeated refusal to accept all mail from the Court indicates that he is no longer interested in litigating this civil action.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. "Examples of prejudice include '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.'" Adams, 29 F.3d at 874 (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). Although this factor does not weigh heavily in favor of dismissal at this time, it is not neutral either. Plaintiff's consistent refusal since late December 2019 to accept mail from the Court, his repeated missing of deadlines and his total failure to communicate with the Court frustrates and delays resolution of his claims against the Defendants. Mack v. United States, No. 3:17-cv-1982, 2019 WL 1302626, *1 (M.D. Pa. Mar. 21, 2019) (plaintiff's continued failure to communicate with the district court and inaction "clearly prejudices the Defendants who seek a timely resolution of the case."). Thus, the second Poulis factor weighs at least slightly in favor of dismissal.
The third Poulis factor considers whether there is a history of dilatoriness. "[E]xtensive or repeated delay or delinquency constitutes a history of dilatoriness[.]" Adams, 29 F.3d at 874. "A party's problematic acts must be evaluated in light of its behavior over the life of the case[,]" id. at 875 and, typically, "conduct that occurs one or two times is insufficient to demonstrate a 'history of dilatoriness.'" Briscoe, 538 F.3d at 261 (citing Scarborough, 747 F.2d at 875, and Donnelly v. Johns-Manvill Sales Corp., 677 F.2d 339, 343 (3d Cir. 1982)). Although Plaintiff did not exhibit dilatoriness until the end of December 2019, since that time he has refused to accept all mail from the Court, has missed all Court-order deadlines, and has not otherwise communicated with the Court. For these reasons, the third Poulis factor weighs in favor of dismissal.
The fifth Poulis factor requires the Court to consider the effectiveness of sanctions other than dismissal. Under the circumstances presented here, where Plaintiff has repeatedly refused to accept the Court's mail, no longer communicates with the Court, and appears to have abandoned the litigation, alternative sanctions would not be effective. Bowie v. Perry, No. 1:19-cv-13, 2019 WL 2412488, *2 (W.D. Pa. May 13, 2019) (Lanzillo, Mag. J.) ("alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court."), Report and Recommendation adopted by, 2019 WL 2410796 (W.D. Pa. July 7, 2019) (Paradise Baxter, J.). As such, this factor weights in favor of dismissal.
When evaluating the sixth Poulis factor, the Court must consider the potential merits of Plaintiff's claims. A claim will be deemed meritorious "when the allegations of the pleadings, if established at trial, would support recover by plaintiff." Poulis, 747 F.2d at 869-70. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not the summary judgment standard, is applicable in the Poulis analysis. Briscoe, 538 F.3d at 263. Here, neither defendant filed a motion to dismiss. Therefore, this final Poulis factor does not weigh in favor of dismissal. However, as set forth above, none of the Poulis factors are dispositive and not all of them need to be met for a district court to find that dismissal is warranted.
Finally, it is also worth noting that the allegation underlying Plaintiff's claims against the Defendants—that they violated his rights because they were engaged in a plot to kill him for purposes of collecting the profits on a fraudulent life insurance policy taken out in his name—is not grounded in reason and any claim dependent on that allegation is likely factually frivolous, which is the case "when the facts alleged rise to the level of the irrational or the wholly incredible[.]" Denton v. Hernandez, 504 U.S 25, 33 (1992).
III. Conclusion
In conclusion, at least five of the six Poulis factors weigh in favor of dismissal. The Court cannot properly control its docket, move this action forward, and properly protect the rights of all parties, if Plaintiff fails to accept mail from the Court, fails to comply with Court orders, and stops communicating with the Court altogether. Since the end of December 2019, he has consistently done all of those things. Therefore, it is respectfully recommended that the Court dismiss this civil action with prejudice for failure to prosecute.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, any party is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge Dated: February 14, 2020