Opinion
Civil Action 22-991
10-23-2023
JOSHUA C. LOWRY, ANTHONY LAW, RAYMAR MCKENZIE, JAMES SMITH, MICHAEL CHAMPION, Plaintiffs, v. DENA BROWN TRINITY GROUP SERVICE STAFF, BENJAMIN O'LEARY TRINITY GROUP SERVICE STAFF, CORITHIAN FOODS FOOD DISTRIBUTOR FOR TRINITY GROUP SERVICE, JENNIFER PASSERELLI DEPUTY WARDEN, DAVID WINTERS CAPTAIN, SCOTT UNKNOWN TRINITY GROUP SERVICE STAFF, JANICE UNKNOWN TRINITY GROUP SERVICE STAFF, Defendants.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Amended Complaint filed in the above-captioned case, ECF No. 29, be dismissed as to Plaintiffs Joshua C. Lowry, Raymar McKenzie, James Smith, and Michael Champion for failure to prosecute.
II. REPORT
Plaintiffs Lowry, McKenzie, Smith, and Champion, with Plaintiff Anthony Law bring this joint pro se civil rights action pursuant to 42 U.S.C. § 1983 for the alleged violation of their rights arising from the size of chicken patty portions served at the Butler County Prison. ECF Nos. 6 and 29. Pending before the Court is a Motion to Dismiss filed on behalf of Defendants Jennifer Passerelli and David Winters, ECF No. 54, and a Motion to Dismiss filed on behalf of Dena Brown, ECF No. 57.
Plaintiffs were ordered to respond to the Motions to Dismiss by June 5, 2023. ECF No. 59. Law filed his response on May 24, 2023, and Lowry requested and was granted an extension of time to respond until July 7, 2023. ECF Nos. 60, 61, 62. The Orders sent to McKenzie, Lowry, Smith, and Champion were returned to the Court as undeliverable. Upon review by Court staff, it appeared that Plaintiffs failed to update their addresses or the addresses belatedly supplied by Plaintiff Champion were incorrectly entered on the docket. In the interest of justice, court staff located current prison addresses for each Plaintiff and directed Defendants to re-serve the Motions to Dismiss at the updated addresses indicated on the docket. ECF No. 65. The Court also ordered Plaintiffs to keep the Court advised of a current address throughout this litigation and to notify the Court in writing of all address changes. Plaintiffs were further notified that if a Plaintiff failed to update the Court of any new address to permit the orderly progress of this litigation, the Court would dismiss his claims. Id.
This is not the first time Plaintiffs have failed to respond to a Court order. On March 3, 2023, the Court entered an Order to Show Cause why Defendant Corinthian Foods should not be dismissed as a Defendant in this action due to Plaintiffs' failure to provide a proper address for service of the Complaint. ECF No. 35. The Order to Show Cause was returned to the Court as undeliverable as to Plaintiff's Champion, Lowry, and Smith. ECF Nos. 36-38. On April 24, 2023, Plaintiff Law sent a “Notice of Addresses” to the Court. ECF No. 52. As a result, the Order to Show Cause was reissued and separately mailed to all Plaintiffs with a copy of the docket at both the new address indicated and the address initially identified by each Plaintiff. ECF No. 53. No Plaintiff responded and on July 27, 2023, the Court issued a Report and Recommendation recommending that Corinthian Foods be dismissed pursuant to Federal Rule of Civil Procedure 4(m). Objections to the Report and Recommendation were due by August 14, 2023. To date no objections have been filed.
Upon the filing of Certificates of Compliance by counsel for Defendants, the Court issued an Order requiring Plaintiffs to file a response to the Motions to Dismiss no later than August 22, 2023. ECF Nos. 66, 67, 68. On July 27, 2023, August 8, 2023, and August 11, 2023, copies of the Order, ECF No. 68, and a Report and Recommendation, ECF No. 69, related to Defendant Corithian Foods were returned to the Court as undeliverable to Plaintiff McKenzie.
As of this date, only Law has responded to the Motion to Dismiss. ECF No. 61. Importantly, at the commencement of this litigation, Plaintiffs were advised that while their claims may be joined in one action, no prisoner is permitted to represent another without aid of counsel. ECF No. 4 (citing Alexander v. New Jersey State Parole Bd., 160 Fed.Appx. 249, 250 and n.1 (3d Cir. 2005) (“a prisoner proceeding pro se may not seek relief on behalf of his fellow inmates”); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (stating that “we consider the competence of a layman representing himself to be clearly too limited to allow him to risk the rights of others” and that “it is plain error to permit this imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action.”)). Thus, the Court ordered each Plaintiff to separately file a response to the pending Motions to Dismiss and directed that the failure to do so would result in dismissal of his claims. ECF No. 68.
The United States Court of Appeals for the Third Circuit has identified a six-factor balancing test to guide a court in determining whether a case should be dismissed for failure to prosecute. 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).
“Dismissal with prejudice is an ‘extreme' sanction” that should be employed as a “last, not first, resort.” Hildebrand, 923 F.3d at 132 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). A close case 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, “[dismissal is a sanction rightfully in the district courts' toolbox,” and the Third Circuit “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).
The first Poulis factor requires the Court to 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.”). Despite the issuance and apparent receipt by Plaintiffs Lowry, Smith and Champion of at least two Orders requiring each of them to respond to the pending Motions to Dismiss or suffer dismissal of their claims, these Plaintiffs have failed to comply or provide just cause for the failure to do so. In addition, McKenzie has failed to contact the Court to update his address and therefore appears to have abandoned his action. Because Plaintiffs are proceeding pro se, each is solely responsible for his own conduct, including the 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). At this stage of the litigation, other than the expense of filing a motion seeking dismissal of the case, there appears to be no specific prejudice to Defendants. However, the “continued failure to communicate with the Court and continued inaction [therefore] frustrates and delays resolution of this action.” 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 also weighs in favor of dismissal. The failure to adhere to this Court's Orders is the second instance of unexcused delay. See ECF Nos. 35, 69. This conduct is sufficient to establish a history of dilatoriness.
With respect to the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. In this case, there is nothing on the docket to suggest that Plaintiffs Lowry, Smith, and Champion are not currently receiving the Court's orders; thus, their failure to comply with the Court's orders appears willful.
The fifth factor address the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. 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 Plaintiffs' 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. While it does not appear that any Plaintiff has alleged facts that would support recovery, this factor will be weighed neither against nor in favor of dismissal. Nevertheless, “[n]ot all of these factors need be met for a district court to find dismissal is warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
On balance, the Court concludes that at least five of the six Poulis factors support dismissal, with the remaining factor (meritoriousness of claim) not weighed against nor in favor of dismissal. While the Court is mindful of the 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 on the record presented here, the extreme sanction of dismissal is supported by the Poulis factors.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that this action be dismissed as to Plaintiffs Joshua C. Lowry, Raymar McKenzie, James Smith, and Michael Champion for failure to prosecute.
In accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(B) & (C), and Local Rule 72.D.2, Plaintiff is permitted to file written objections and responses thereto 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 constitute a waiver of any appellate rights. Siers v. Morrash, 700 F.3d 113, 116 (3d Cir. 1983). See 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.