Opinion
Civil Action 21-cv-709
02-06-2024
ERICK LEE, Plaintiff, v. CO1 RIETSENA; CO1 BRUBAKER; and LT WEAKLAND, Defendants.
District Judge Cathy Bissoon
Re: ECF No. 1
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.
IL REPORT
Plaintiff Erick Lee (“Plaintiff') is a state prisoner who appears to be incarcerated at the State Correctional Institute at Rockville (“SCI-Rockview”) in Bellefonte, Pennsylvania. This case was commenced on May 27, 2021, with the receipt of Plaintiff s Complaint without payment of the required filing fee, or a motion for leave to proceed in forma pauperis (“IFP”). ECF No. 1.
The procedural history of this case is somewhat tortuous. Relevant to the present Report and Recommendation, this case already has been dismissed once due to Plaintiffs failure to prosecute. ECF Nos. 5, 7, and 8. Plaintiff filed a Motion for Reconsideration with respect to that dismissal on November 18, 2022, ECF No. 9, which the undersigned initially recommended rejecting. ECF No. 12. However, after evidence came to light of Plaintiff s attempt to comply with court orders, the undersigned rescinded that recommendation, ECF No. 14, and issued an Amended Report and Recommendation recommending granting reconsideration. ECF No. 15. On June 21, 2023, District Judge Cathy Bissoon granted Plaintiffs motion, vacated judgment, and reopened this case. ECF No. 16. She also directed that Plaintiff comply with the June 9, 2021 Deficiency Order. Id.
On July 17, 2023, Plaintiff moved for leave to proceed in forma pauperis. ECF No. 18. The undersigned denied IFP status to Plaintiff on July 19, 2023, and Plaintiff was ordered to pay the full filing fee on or before August 18, 2023. ECF No. 20. Plaintiff appealed to Judge Bissoon on July 31, 2023. ECF No. 21. Judge Bissoon denied the appeal, and affirmed the undersigned's order on August 12, 2023. ECF No. 22. This Court extended the deadline for Plaintiff to pay the filing fee until September 14, 2023. ECF No. 23.
Plaintiff did not pay the filing fee. Accordingly, the undersigned issued an Order to Show Cause on September 29, 2023. ECF No. 26. Plaintiff was warned that if he failed to respond on or before October 19, 2023, this case would be dismissed for failure to prosecute. Id. at 1.
Although over three months have passed, as of this date Plaintiff has not responded to the Order to Show Cause or paid the filing fee. In addition, Plaintiff has not filed anything in this case since his appeal dated July 31, 2023. ECF No. 21. As a result, the Court considers appropriate action.
A district court has the inherent power to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a plaintiffs 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; he alone is responsible for prosecuting this case and complying with orders of this Court. Plaintiff is solely responsible for failing to pay the filing fee, as well as for failing to respond to the Order to Show Cause. ECF No. 26.
(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 with the Complaint. There is no indication that any defendant has been prejudiced unfairly by Plaintiffs conduct.
(3) A history of dilatoriness
Plaintiff has refused to pay the filing fee, and has not responded to the Order to Show Cause. ECF No. 26. 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 responding to the Order to Show Cause at ECF No. 26 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 likely would be an effective sanction.
(6) Meritoriousness of the case
It is unclear at this early stage whether Plaintiffs 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. Moreover, given the entirety of the Poulis analysis -including the facts that the filing fee never was paid, and the Complaint never was served, dismissal should be without prejudice.
III. CONCLUSION
Based on the reasons set forth above, it respectfully is recommended that Plaintiffs Complaint be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 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 within fourteen days, or seventeen days for unregistered ECF Users. 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). 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.