Opinion
Civil Action No. 20-1081
04-01-2021
DONTAY GREEN Plaintiff, v. THEODORE MATHIS, III Defendant.
District Judge Robert J. Colville ECF No. 31 REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that this case be dismissed for failure to prosecute and for failure to comply with court orders.
II. PROCEDURAL HISTORY
On July 20, 2020, Plaintiff Dontay Green ("Plaintiff") filed a Motion to Proceed in Forma Pauperis. ECF No. 1. That motion was denied (ECF No. 3) and Plaintiff filed a second Motion to Proceed in Forma Pauperis on September 9, 2020. ECF No. 4. That motion was granted (ECF No. 6) and Plaintiff's Complaint was docketed on September 10, 2020. ECF No. 7. On February 10, 2021 the Court entered an Order to Show Cause why this case should not be dismissed for Plaintiff's failure to prosecute. ECF No. 26. In the Order, the Court noted that Plaintiff's address of record was listed as the Allegheny County Jail. Yet, on February 9, 2021, the Court received mail it had previously sent to Plaintiff noted as "Not deliverable as Addressed." ECF No. 26. The Court, on its own, determined that Plaintiff was then housed at SCI-Smithfield. Plaintiff did not notify the Court of his change in address as he is required to do. Therefore, the Court ordered that no later than February 25, 2021, Plaintiff shall file the required notice of change of address. The Court continued that if he did not, the Court would assume that he no longer wished to proceed with this civil action and it would be dismissed for failure to prosecute. ECF No. 26. The Clerk was instructed to mail the Order to Show Cause to Plaintiff's SCI-Smithfield address.
Nothing was received, so on March 5, 2021, the Court issued another Order to Show Cause why this case should not be dismissed for Plaintiff's failure to prosecute. ECF No. 31. In this instance, the Court again noted that mail it had previously sent to Plaintiff was returned as undeliverable. In addition, the Court determined, again on its own, that Plaintiff was now located at SCI-Camp Hill, although his address of record was still listed as the Allegheny County Jail. Id. Therefore, the Court set a March 19, 2021 deadline for Plaintiff to file the required notice of change of address. Again, the Court notified the Plaintiff that it would assume that Plaintiff no longer wished to proceed with this civil action and that this civil action would be dismissed for failure to prosecute if Plaintiff did not file the notice of change of address by the deadline. The Court directed the Clerk to mail the Order to the Plaintiff at the SCI-Camp Hill address. As of the date of this Report and Recommendation, well after the March 19, 2021 deadline, Plaintiff has failed to submit the required notice of change of address. In addition, Plaintiff has filed no further documents/motions in pursuit of his claims at this civil action number.
III. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim. It provides that:
[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.
A. Sua sponte dismissal
"Under Rule 41(b), a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order." Qadr v. Overmyer, No. 15-3090, 642 F. App'x 100, 102 (3d Cir. 2016) (per curiam) (citing Fed. R. Civ. P. 41(b)); see also Adams v. Trustees of N.J. Brewery Emps. Pension Trust 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 v. Overmyer, 642 F. App'x 100, 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).
Here, Plaintiff has been advised that absent affirmative indication of desire to proceed with the litigation on or before February 25, 2021, and later extended to March 19, 2021, the Court would recommend that the case be dismissed with prejudice. The Court issued an Order to Show Cause on February 10, 2021 and again on March 5, 2021. Having been given ample opportunities, Plaintiff has failed to provide any response or information that would account for failure to move this litigation forward.
B. The Poulis Factors
In Poulis v. States Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), 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.Id. at 868 (emphasis omitted). 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 v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). 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 Cnty., 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 (citing Nat'l Hockey League v. Metro. 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.
C. Application of the Poulis Factors
1. 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 v. Trs. of the N.J. Brewery Emps. Pension Tr. Fund, 29 F.3d 863, 873 (3d Cir. 1994). In determining personal responsibility for the delay, the Court must distinguish "between a party's responsibility for delay and counsel's responsibility." Hildebrand, 923 F.3d at 133 (citing Poulis, 747 F.2d at 868). A plaintiff is not conjecturally responsible for her counsel's delay. Id. Any doubt as to personal responsibility should be resolved "'in favor of reaching a decision on the merits.'" Id. at 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Here, because Plaintiff is proceeding pro se, the responsibility of moving the case forward lies with him. Therefore, the first factor favors dismissal.
2. Prejudice to the adversary
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).
Here, Defendant, Theodore Mathis, III, will be prejudiced if the case is permitted to linger in the absence of activity by the Plaintiff. Plaintiff's claim against Defendant police officer sounds in excessive force pursuant to the Fourth and Fourteenth Amendments. The memory of witnesses will most surely fade with the lapse of time and evidence may also be lost. The Defendant cannot defend claims that are not being pursued by Plaintiff. Therefore, the second factor favors dismissal.
3. A history of dilatoriness
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.
Here, other than filing his Motions to Proceed in Forma Pauperis, (ECF Nos. 1 & 4), Plaintiff has done nothing to pursue this civil action since September 9, 2020, when he filed his second in forma pauperis motion. ECF No. 4. The third factor weighs in favor of dismissal.
4. Whether the party's conduct was willful or in bad faith
In determining if 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. (citing Scarborough, 747 F.2d at 875 (citation omitted)). "Willfulness involves intentional or self-serving behavior." Adams, 29 F.3d at 875. Although "[a] lengthy delay reflects 'inexcusable negligent behavior,' id. at 876, . . . that behavior alone does not rise to the level of willfulness or bad faith." Hildebrand, 923 F.3d at 135.
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.
Here, Plaintiff has willfully disobeyed Court orders. The Court has taken it upon itself to locate Plaintiff where Plaintiff has failed to fulfill his responsibility to notify the Court of his change of address. The Court has undertaken this search twice. Plaintiff has failed to take any action for six (6) months despite this Court's repeated prompting to move the case forward. Therefore, the fourth factor weighs in favor of dismissal.
5. 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 should also provide an analysis of effectiveness sufficient "to honor [the] longstanding tradition of favoring decisions on the merits." Id. In so doing, 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.
Here, in the absence of any action taken by the Plaintiff, no alternative sanctions could remedy or mitigate the prejudice caused by Plaintiff's failure to take any steps to move the case forward. Therefore, the fifth factor weighs in favor of dismissal.
6. Meritoriousness of claim or defense
"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.
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." (Fowler [v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (citation omitted)]; see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18, (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
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).
Here, Plaintiff alleges that he was shot in the back of the leg by Defendant when he was fleeing from Defendant's partner. Plaintiff alleges that there were no bystanders in front of him that would be placed in danger by Plaintiff's flight. Plaintiff notes that he was showing no signs of aggression. Therefore, liberally construed, he alleges a Fourth Amendment claim against Defendant for excessive force. The final Poulis factor does not weigh in favor of dismissal.
D. Summation of Poulis Factors
Here, all but the final Poulis factor weighs in favor of dismissal.
IV. CONCLUSION
For the above reasons, it is respectfully recommended that this case be dismissed for failure to prosecute and for failure to comply with court orders.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, 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 such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: April 1, 2021
/s/_________
LISA PUPO LENIHAN
United States Magistrate Judge Dontay Green
SCI-Camp Hill
QF9631
P.B. Box 8837
2500 Lisburn Road
Camp Hill, PA 17001