Opinion
Civil Action 21-cv-709
10-29-2021
ERICK LEE, Plaintiff, v. CO1 RIETSENA; CO1 BRUBAKER; and LT WEAKLAND, Defendants.
Cathy Bissoon District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be dismissed without prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure.
II. REPORT
Plaintiff Erick Lee (“Plaintiff”) is a state prisoner who appears to be incarcerated at the State Correctional Institute at Frackville (“SCI-Frackville”) in Frackville, Pennsylvania. This case was commenced on May 27, 2021 with the receipt of Plaintiff's Complaint without of payment of the required filing fee, or a motion for leave to proceed in forma pauperis (“IFP”). ECF No. 1
Plaintiff's address of record in this case is at SCI-Pine Grove. However, the Pennsylvania Department of Corrections' inmate locator webpage indicates that Plaintiff is housed at SCI-Frackville. See http://inmatelocator.cor.pa.gOv/#/ (last visited Oct. 27, 2021). Out of an abundance of caution, this Report and Recommendation will be mailed to Plaintiff at both addresses.
On June 9, 2021, this Court issued a Deficiency Order, in which Plaintiff was directed either to pay the filing fee or move to proceed IFP. ECF No. 3. The deadline to respond thereto was July 9, 2021. Id. at 3.
Plaintiff did not respond, and an Order to Show Cause was issued on August 27, 2021. ECF No. 4. The deadline to respond to the show cause order was September 24, 2021. Id. at 1. The Order to Show Cause was mailed to Plaintiff at his address of record, but the Order was returned as undeliverable on September 8, 2021. On the following date, the Order to Show Cause was re-mailed to Plaintiff at SCI-Frackville.
As of this date, Plaintiff has not responded to the Deficiency Order or the Order to Show Cause. In addition, Plaintiff has not paid the filing fee, or moved for leave to proceed IFP.
A district court has the inherent power to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a plaintiff's failure to prosecute or to comply with an order of court. Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). “Under our jurisprudence, the sanction of dismissal is reserved for those cases where the plaintiff has caused delay or engaged in contumacious conduct. Even then, it is also necessary for the district court to consider whether the ends of justice would be better served by a lesser sanction.” Id.
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the United States Court of Appeals for the Third Circuit set forth six factors to be weighed when considering whether to dismiss a case as a sanction for failure to prosecute or to obey pretrial orders. They are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure; (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. These factors must be balanced in determining whether dismissal is an appropriate sanction, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Consideration of the factors listed above is as follows.
(1) The extent of the party's personal responsibility
Plaintiff is proceeding in this matter pro se, and is alone responsible for prosecuting this case and complying with orders of this Court. Plaintiff is solely responsible for failing to cure the identified deficiencies, as well as for failing to respond to the Order to Show Cause. ECF No. 4.
(2) Prejudice to the adversary
The filing fee has not been paid, leave to proceed IFP has not been granted, and no defendant has been served the Complaint. There is no indication that any defendant has been prejudiced unfairly by Plaintiff's conduct.
(3) A history of dilatoriness
Plaintiff has refused to correct the deficiencies identified in the Deficiency Order, and has not responded to the Order to Show Cause. This is sufficient evidence, in this Court's view, to indicate that Plaintiff does not intend to proceed with this case in a timely fashion.
(4) Whether the party's conduct was willful or in bad faith
There is no indication on the record that Plaintiff's conduct with respect to paying the filing fee or proceeding IFP was the result of any “excusable neglect, ” Poulis, supra. The conclusion that the failure is willful is inescapable.
(5) Alternative sanctions
Plaintiff currently is proceeding pro se, and there is no indication on the record that the imposition of costs or fees would likely be an effective sanction.
(6) Meritoriousness of the case
It is unclear at this early stage whether Plaintiff's claims have merit.
Because four of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute.
III. CONCLUSION
Based on the reasons set forth above, it respectfully is recommended that Plaintiff's Complaint be dismissed, without prejudice to refiling, under Rule 41.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections 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 waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).