Opinion
CIVIL 3:22-CV-00101
10-17-2022
HARRY HAMILTON, Plaintiff, v. 113TH PRECINCT COMMANDING OFFICER, 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 Harry Hamilton (“Hamilton”) began this action by filing a complaint pro se on January 19, 2022. Doc. 1. The complaint identifies the following defendants: (1) 113th Precinct Commanding Officer (“Commanding Officer”), (2) “Arresting Officer and Sergeant as Well as All Officers Present in the Precinct” (“Present Officers”), (3) John Does, (4) Jane Does, (5) “NYPD Chain of Command and all Intervening Officers” (“Intervening Officers”), (6) Mayor of New York (“Mayor”), (7) “Governor of New York and all Intervening Supervisory Personnel” (“Governor”), and (8) “Benefiting ABC Corps” (“ABC Corps”). Id.
On January 21, 2022, we ordered Hamilton to serve the complaint on the defendants in accordance with Fed.R.Civ.P. 4, or obtain waivers of service under Fed.R.Civ.P. 4(d) from the defendants, within 90 days of filing his complaint. Doc. 6. Hamilton did not do so.
On September 12, 2022, we issued an order requiring Hamilton to show cause by October 7, 2022, why the action should not be dismissed. Doc. 7. We warned Hamilton that failure to show cause may lead this court to recommend the dismissal of this lawsuit due to abandonment. Id. Hamilton did not respond to this show-cause order.
III. Discussion.
Because Hamilton 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 Hamilton is proceeding pro se, he is responsible for his failure to serve the complaint upon the defendants 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, Hamilton'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, Hamilton did not serve the defendants. 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, Hamilton's failure to serve the complaint 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. Though Hamilton paid the filing fee, he also included with his complaint a letter requesting to proceed in forma pauperis and explaining that “I owe much more money than I have as income at present with the only change in circumstances is owing more money to multiple entities.” Doc. 1. 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, Hamilton's failure to comply with either the order to serve the complaint or the order to show cause leads 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. The complaint does not state a claim on which relief can be granted. Instead, it is solely comprised of general, and seemingly unconnected, allegations of “systemic and systematic racism,” mistreatment by the media and NFL, concussions, a need for “reasonable accommodations,” “deprivation of civil rights,” and “treatment at the hands of law enforcement.” Doc. 1. Hamilton alleges no facts to justify these conclusory allegations, so it remains unclear what mistreatment took place, what relief is demanded, and how any injuries are connected to the named defendants. Id. Further, it appears that this court would not have venue in the instant case, as Hamilton alleges that Jamaica, New York is the “very area this deprivation of civil rights took place,” and it appears the only connection to this district is that Hamilton grew up here. Id. Even assuming for the sake of argument that Hamilton's claims are meritorious, consideration of this factor cannot save his case, since he is now wholly noncompliant with his obligations as a litigant and the case cannot reasonably proceed without his participation.
In sum, the Poulis factors weigh in favor of dismissal. Hamilton 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.