Opinion
Civil Action 22-45J
10-12-2022
NORMAN HARVEY, Plaintiff, v. GEORGE MILLER; DEBRAH L CARPENTER; MELISA HAINSWORTH; ROBERT SNYDER; DAVID PIECZK; COUNSELOR WHALEN; PAROLE SUPERVISOR MR. DORINZO; PAROLE AGENT MR. RECKNER; SARGEANT S. NOSE; GOOD; and JUDGE D. GREGORY GEARY, Defendants.
David S. Cercone District Judge
REPORT AND RECOMMENDATION RE: ECF NO. 2
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Complaint submitted in the above-captioned case, ECF No. 2, be dismissed for failure to prosecute.
II. REPORT
Plaintiff Norman Harvey (“Plaintiff”) has presented a civil rights complaint against George Miller, Secretary of the Pennsylvania Department of Corrections, and several supervisors and employees of the Pennsylvania Board of Probation and Parole and the State Correctional Institution at Laurel Highlands (“SCI - Laurel Highlands”).Plaintiff alleges that Defendants violated his due process rights under the Fourteenth Amendment to the United States Constitution when they wrongfully detained him and then transferred him to the custody of the State of Ohio. Plaintiff further complains that during his incarceration at SCI - Laurel Highlands, he was housed in punitive conditions including frigid temperatures, and was subjected to a strip search, required to stand, denied access to a telephone, recreation, showers, and legal materials, and suffered the destruction of his personal property. ECF No. 2.
Plaintiff initially filed his Complaint in the United States District Court for the Eastern District of Pennsylvania. By Order dated March 28, 2022, Plaintiff's case was transferred sua sponte to this Court as the appropriate venue given that Plaintiff's claims arise from events that occurred within the Western District of Pennsylvania, and all Defendants but two are located here. ECF No. 5.
On May 18, 2022, this Court issued an Order directing Plaintiff to correct certain filing and service deficiencies. ECF No. 7. Plaintiff failed to respond and an Order to Show Cause was issued on August 17, 2022, directing Plaintiff to show cause why this matter should not be dismissed for failure to prosecute. To date, Plaintiff has failed to respond or given any other indication that he wishes to proceed with this action.
It is clear that the punitive dismissal of an action for failure to comply with court orders is left to the discretion of the court. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). In determining whether an action should be dismissed as a sanction against a party the court must consider six factors. These factors, as set forth in Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863, 868 (3d Cir. 1984), are as follows:
(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.
(6) The meritoriousness of the claim or defense.
Consideration of these factors suggests that the instant action should be dismissed.
Factors 1, 3, and 4 all relate to Plaintiff's failure to comply with this Court's orders so that the case could proceed which weighs heavily against him. Plaintiff's failure to respond to the Court's orders was not only solely his personal responsibility but his failure to do so appears willful and constitutes a history of dilatoriness.
With respect to the second factor -- the prejudice caused to the adversary by Plaintiff's failure to comply with this Court's orders -- there appears to be no specific prejudice to Defendants other than general delay as the Defendants have not yet been served with the Complaint. Similarly, factor No. 6 -- the meritoriousness of the claim -- will be weighed neither in favor nor against Plaintiff as it is too early in the litigation to assess the merits of Plaintiff's claims. Nevertheless, “[n]ot all of these factors need be met for a district court to find dismissal is warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
The final factor to consider is the effectiveness of sanctions other than dismissal. Since Plaintiff filed this action without the payment of the required filing fee, it does not appear that monetary sanctions are appropriate. Moreover, Plaintiff's failure to comply with the Court's orders, which has prevented this case from proceeding, indicates that Plaintiff has no serious interest in pursuing this case. It therefore appears that dismissal is the most appropriate action for the Court to take. Mindek v. Rigatti, 964 F.2d at 1373. Accordingly, it is respectfully recommended that the Complaint filed in the above-captioned case be dismissed for failure to prosecute.
In accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(B) & (C), and Local Rule 72.D.2, Plaintiff is permitted to file written objections and responses thereto in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will constitute a waiver of any appellate rights. Siers v. Morrash, 700 F.3d 113, 116 (3d Cir. 1983). See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.