Opinion
Case No. 1:19-cv-202 Erie
10-30-2019
MATT L. LOPER, Plaintiff v. JUDY L. LOPER, Defendant
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION 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
Plaintiff initiated this civil rights action on July 15, 2019, by filing a motion for leave to proceed in forma pauperis ("IFP"). In lieu of a civil complaint, Plaintiff submitted the following exhibits: several documents styled "private criminal complaints" that he had previously mailed to the Office of the District Attorney in Meadville, Pennsylvania, and response letters from the district attorney informing him that his private criminal complaints had been rejected. ECF No. 1. Plaintiff did not identify any legal claims or supply any sort of factual narrative to explain the relevance of those documents.
On July 26, 2019, this Court denied Plaintiff's IFP motion and ordered him to file a civil complaint on or before August 26, 2019. ECF No. 3. The Court also provided Plaintiff with guidance as to the appropriate format and content of a civil complaint. Plaintiff failed to respond.
The Court notes that Plaintiff initiated fifteen civil lawsuits in July 2019. Since then, Plaintiff has completely failed to participate in any of his civil actions and has ignored a host of show cause orders issued by the Court. --------
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, -- F.3d --, 2019 WL 1783540, at *3 (3d Cir. Apr. 24, 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."). Since the filing of this matter, Plaintiff has taken none of the necessary first steps to pursue his claims and has ignored this Court's order directing him to take various steps to prosecute this action. Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including his failure to 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). Although this factor does not weigh heavily here, the Court notes that Plaintiff's "continued failure to communicate with the Court and continued inaction frustrates and delays resolution of this action" by preventing the unserved defendants from receiving notice of this lawsuit and seeking a timely resolution of Plaintiff's 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.").
The third Poulis factor weighs strongly in favor of dismissal. At this point, Plaintiff has failed to engage with the Court or take any steps to pursue his claims for almost four months and has failed to respond to the Court's orders, both in this and in other cases. See ECF No. 3. This conduct is sufficient 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. While it is difficult to evaluate willfulness on the limited record available, there is nothing on the docket to suggest that Plaintiff is not receiving the Court's orders, nor has he offered any explanation for his repeated failures to respond. Under such circumstances, the Court must conclude that those failures are intentional, tilting this factor in favor of dismissal.
The fifth factor address 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. Here, the absence of a civil complaint renders it impossible to determine what claims Plaintiff is raising, much less whether those claims have any potential merit. This factor is neutral.
On balance, the Court concludes that five of the six Poulis factors support dismissal, with the remaining factor being neutral. 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).
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
United States Magistrate Judge Dated: October 30, 2019