Opinion
1:19-cv-353 Erie
04-25-2023
RODERICK LEE, Plaintiff v. M. CLARK, et al., Defendants
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is hereby recommended that this action be dismissed due to Plaintiff's failure to prosecute.
II. Report
A. Background
Plaintiff Roderick Lee initiated this civil rights action on November 27, 2019, by filing a motion for leave to proceed in forma pauperis. ECF No. 1. In the accompanying complaint, Plaintiff asserted claims of excessive force, denial of necessary medical care, and denial of access to the courts. Id. Following a timely motion to dismiss, the undersigned recommended that each of Lee's claims be dismissed except for the following: 1) his claim against Defendant Hermit for failure to protect him from attack on January 3, 2019; 2) his claim against Hermit for deliberate indifference to his risk of self-harm or suicide; 3) his claim of deliberate indifference to a serious medical need, to the extent that Plaintiff could identify an appropriate defendant and amend his complaint accordingly; and 4) his retaliation claim, again to the extent that he could identify an appropriate defendant in an amended pleading. ECF No. 34. United States District Judge Susan Paradise Baxter adopted the Report and Recommendation over Plaintiff's objections. See ECF No. 36.
On April 6, 2021, the Court granted Plaintiff's request for appointment of counsel and instructed the Clerk of Court to request a lawyer to enter an appearance on behalf of Plaintiff. ECF No. 42. After three attorneys declined to represent Plaintiff, the Court reopened the case and issued an order directing Plaintiff to serve written discovery upon counsel for named Defendants for the limited and exclusive purpose of attempting to identify the Doe Defendants. ECF No. 48. The Court mailed that order to Plaintiff at his address of record on December 14, 2021. A corrected version of the order was mailed to Plaintiff on December 15, 2021, again at his address of record. Each order was returned as undeliverable and marked “paroled.” See ECF Entry January 10, 2022.
On March 28, 2022, the Court issued an order administratively closing this case based on Plaintiff's failure to maintain a current address. ECF No. 52. The Court noted that Plaintiff was no longer incarcerated at SCI Greene (or anywhere in the state correctional system) and had failed to keep his address current with the Court. That order, like the previous two, was returned as undeliverable. See ECF Entry April 6, 2022.
To date, Plaintiff's last action in this case was his participation in a telephonic status conference on April 6, 2021, over two years ago. Each of the Court's orders since that date has been returned as undeliverable. Plaintiff's failure to maintain a current address leaves the Court unable to locate him, communicate with him, or engage in any meaningful case management. Whether Plaintiff's claims have been intentionally abandoned or simply neglected, a final order dismissing this action with prejudice is warranted.
B. Analysis
The Court of Appeals for the Third Circuit has set out a six-factor balancing test to guide a court in determining whether a case or claim should be dismissed for failure to prosecute. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 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 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. 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), and not all of the six factors need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Rather, the court must “properly consider and balance” each of the six factors based on the record. See Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868).
As recently emphasized by the Court of Appeals, “dismissal with prejudice is an ‘extreme' sanction” that should be employed as a “last, not first, resort.” Hildebrand, 2019 WL 1783540, at *3 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). Close calls should “be resolved in favor of reaching a decision on the merits.” Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, the Court of Appeals “has not hesitated to affirm the district court's imposition of sanctions, including dismissals in appropriate cases.” Id. (citing Poulis, 747 F.2d at 867 n. 1).
Turning to the first Poulis factor, the Court must consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams, 29 F.3d at 873 (“[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.”). In the two years since Plaintiff's last activity on the docket, Plaintiff has failed to maintain his current address with the Court or take any steps to prosecute his claims. Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including his failure to update his address and respond to orders from the Court. See, e.g., Colon v. Karnes, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012) (“Plaintiff is proceeding pro se, and thus is responsible for his own actions.”). This factor weighs heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[,] the excessive and possibly irremediable burdens or costs imposed on the opposing party,” Adams, 29 F.3d at 874, and “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). In this case, Defendants have already expended a meaningful amount of time in defending against Plaintiff's allegations, including the filing of a partially meritorious motion to dismiss, responses to several ancillary motions, and participation in multiple status conferences. Plaintiff's “failure to communicate with the Court and continued inaction frustrates and delays resolution of this action” by preventing Defendants from receiving a timely adjudication of his remaining claims. See Mack v. United States, 2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019) (“[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case.”). This factor also weighs in favor of dismissal.
The same is true of the third Poulis factor. Plaintiff has failed to engage with the Court or take any steps in over two years to pursue his claims. Despite his obligation to do so, Plaintiff has failed to maintain a current address, preventing him from receiving the Court's orders. This conduct is enough to establish a history of dilatoriness. See Mack, 2019 WL 1302626, at *2 (“Mack has established a history of dilatoriness through his failure to notify the Court of his whereabouts and failure to comply with Court Orders and rules.”).
With respect to the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. Although Plaintiff is solely responsible for maintaining a current address, it is unclear whether his failure to do so is the result of an intentional abandonment of his claims or simple neglect. Under such circumstances, the Court concludes that this factor is neutral.
The fifth factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that alternative, monetary sanctions are ineffective where the Plaintiff is indigent. See, e.g., Brennan v. Clouse, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) (“Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.”) (citing Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002)). Moreover, alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court. Mack, 2019 WL 1302626, at *2 (noting that the court was “incapable of imposing a lesser sanction” on a plaintiff who refused to participate in his own lawsuit). As such, this factor weighs heavily in favor of dismissal.
Finally, the Court must consider the potential merit of Plaintiff's claims. A claim will be deemed meritorious “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. In this case, several of Plaintiff's allegations survived Defendants' motion to dismiss, tilting this factor against dismissal. The Court notes, however, that at least two of those surviving claims were conditionally provisioned upon Plaintiff's ability to identify a viable defendant through discovery and file an amended pleading. Because of his failure to take any further steps in this case, it is unclear whether Plaintiff would have been able to do so. Accordingly, this factor tilts against dismissal, but only slightly.
On balance, the Court concludes that four of the six Poulis factors heavily support dismissal, with one factor being neutral and one factor weighing against dismissal, albeit slightly. While the Court is mindful of this Circuit's strong policy in favor of deciding cases on the merits, such a resolution is impossible where the plaintiff declines to participate in his own lawsuit. Consequently, the Court concludes that the extreme sanction of dismissal is supported by the Poulis factors and the record at hand.
III. Conclusion
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Plaintiff's failure to prosecute.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen days. Any party opposing the objections shall have fourteen days to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187,194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).