Opinion
2:21-cv-399-KRG-KAP 2:22-cv-854-KRG-KAP
11-14-2022
WILLIAM P. JACKSON, Plaintiff, v. WARDEN ORLANDO HARPER, et al. Defendants WILLIAM P. JACKSON, Plaintiff, v. DEPUTY PASARELLI, et al. Defendants
REPORT AND RECOMMENDATION RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
If not acted on promptly, these cases should be dismissed for lack of prosecution.
Report
William P. Jackson was prosecuted in United States v. Jackson, 2:2O-cr-ii8-NBF (W.D.Pa.). Judge Fischer sentenced Jackson on September 28, 2022 to a term of imprisonment followed by supervised release; with credit for time in custody Jackson was released from federal custody on October 7, 2022. There was no direct appeal.
During a portion of his pretrial custody Jackson was detained at the Allegheny County Jail, and he filed a complaint at 2:21-cv-399 in March 2021, amended December 2021, seeking damages for allegedly inadequate dental care by personnel at the ACJ. Plaintiff spent a good part of 2022 litigating a motion for temporary restraining order and has only recently provided service copies of the amended complaint on the two remaining defendants in this matter.
After Jackson was transferred from the Allegheny County Prison to the Butler County Prison, he filed a complaint at 2:22-cv-854 in June 2022, seeking damages for allegedly inadequate dental care by personnel at the BCP. Plaintiff also spent some part of 2022 litigating a motion for temporary restraining order in this case, but because he has not provided service copies of the complaint in this matter no defendants have been served.
Jackson has not updated his address. If he does not do so within a reasonable time and take steps to serve his complaint in 2:22-cv-854, I recommend both complaints be dismissed without prejudice under Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984), and its progeny.
There are six factors to consider in recommending dismissal of a case as a sanction for failure to prosecute: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary; (3) any history of delay; (4) whether the conduct of the party or attorney at fault was willful or in bad faith; (5) the effectiveness of alternative sanctions; and (6) the merit of the claim or defense. Weighing the Poulis factors, dismissal of the complaint is an appropriate sanction. It is not necessary that all the Poulis factors weigh in favor of dismissal. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988). The sanction for failure to prosecute must balance the Court's need to control its own docket against the goal of disposing of litigation on its merits, see In re Asbestos Products Liability Litigation (No. VI), 718 F.3d 236, 246 (3d Cir.2013), recognizing that in the absence of “substantial” reasons to the contrary, cases should be decided on the merits. Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019).
Because the plaintiff is proceeding pro se, he is solely responsible for any lack of action to advance his cases. It is unknowable whether any particular prejudice will result to any defendant, but in general memories dim as time goes on and it is reasonable to believe that evidence other than memories similarly becomes less accessible. Alternative sanctions such as monetary penalties are inappropriate with indigent plaintiffs. The merits of any claim against any defendant are impossible to appraise on the pleadings alone, but there is an excellent summary of Jackson's dental care while in the Marshal's custody written by AUSA Vasquez-Schmitt at ECF no. 257 in the criminal case that makes appear that the merits of the claims, especially in 2:22-cv-854, are doubtful. An inmate plaintiff losing touch with his litigation when he is released from custody is typical, but if prolonged, failure to provide a current address can be described as willful. I recommend dismissal without prejudice.
Normally, pursuant to 28 U.S.C.§ 636(b)(1), plaintiff would be given notice at his last address that he can within fourteen days file written objections to this Report and Recommendation. As explained herein that cannot be done and the matter is presented for the Court's action at this time.