Opinion
Case No. 1:20-cv-160 Erie
12-18-2020
CHRISTOPHER M. MILLER, Plaintiff v. WARDEN GREGORY GEBAUER, et al., Defendants
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
A. Background
Plaintiff Christopher M. Miller initiated this civil rights action on June 22, 2020, by filing a motion for leave to proceed in forma pauperis. ECF No. 1. Plaintiff filed a renewed motion for leave to proceed in forma pauperis on July 14, 2020. ECF No. 3. In his underlying complaint, which has been lodged but not yet filed, Plaintiff appears to claim that officials at the Elk County Prison, where he is currently incarcerated, referred a prison disciplinary incident to the local district attorney for charges without first giving him adequate notice or a hearing. ECF No. 1-2. Plaintiff maintains that this violated his constitutional rights as secured by the First, Fifth, Sixth, Eighth, and Fourteenth Amendments. He has named the following individuals as Defendants: Warden Gregory Gebauer; Warden Ed Warmbrodt; Commissioner Matt Quesenbury; Commissioner Joe Daghir; Commissioner Fritz Lecker; Sheriff Todd Caltagarone; and District Attorney Tom Coppolos. Id. Plaintiff seeks monetary damages and an order directing the state courts to terminate the criminal proceedings pending against him in Commonwealth v. Miller, MJ-59302-CR-0064-2020. Id.
On October 21, 2020, the Court notified Plaintiff that, because he had applied for leave to proceed in forma pauperis, his complaint was subject to the screening provisions set forth in 28 U.S.C. § 1915(e). See ECF No. 4. Pursuant to that statute, the Court performed an initial screening of Plaintiff's complaint and identified several critical deficiencies. Specifically, Plaintiff's complaint: (1) relied almost entirely on legal conclusions and citations to caselaw; (2) lacked a factual narrative and/or factual allegations in support of his claim; (3) failed to allege the personal involvement of any of the identified Defendants; (4) failed to state a claim upon which relief can be granted, particularly with regards to his Fifth Amendment and equal protection claims; (5) requested a form of relief (an order directing a state court to terminate an ongoing criminal proceeding) that was not available in a § 1983 action; and (6) sought monetary damages in connection with an ongoing state criminal proceeding, a remedy likely barred by the Younger abstention doctrine. See Younger v. Harris, 401 U.S. 37, 43-44 (1971) (holding that federal courts must generally abstain from exercising jurisdiction where the federal adjudication would interfere with an ongoing state court proceeding). Rather than recommend that this action be dismissed pursuant to § 1915(e), the Court instead offered Plaintiff an opportunity to file an amended complaint on or before November 19, 2020. ECF No. 4. The Court cautioned him that "[f]ailure to do so may result in a recommendation that this matter be dismissed." Id. Despite the Court's warning, Plaintiff never filed an amended complaint.
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."). 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 "failure to communicate with the Court and continued inaction frustrates and delays resolution of this action" by preventing Defendant from receiving a timely adjudication of his 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 also weighs in favor of dismissal. Plaintiff has failed to engage with the Court and take the necessary actions to pursue his claims. Despite being warned that failure to comply with orders from the Court would result in a recommendation that this matter be dismissed for failure to prosecute, Plaintiff failed to file an amended complaint in a timely fashion. 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]ilfulness 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 failure to respond. Under such circumstances, the Court must conclude that Plaintiff has abandoned his case.
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. As discussed above, Plaintiff's claims, as set forth in his original complaint, were legally deficient in several regards and subject to dismissal pursuant to § 1915(e). Rather than dismiss at that time, the Court elected to provide Plaintiff an opportunity to cure the deficiencies in his pleading. He declined to do so. Accordingly, this factor weighs heavily in favor of dismissal.
To the extent that Plaintiff's failure to file an amended complaint indicates a preference to stand by the allegations in his original pleading, his claims are alternatively subject to dismissal pursuant to § 1915(e) for the reasons set forth in this Court's prior order. See ECF No. 4. --------
On balance, the Court concludes that each of the six Poulis factors supports dismissal. 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
United States Magistrate Judge Dated: December 18, 2020