Opinion
Civil Action 21-942
01-31-2022
JUAN EVRICK MITCHELL Plaintiff, v. JOSEPH R. STEPMAN; MARCELL BROWN; DREA MIN BROWN; and TRACI REPAR LINN OWENS, Defendants.
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 for Plaintiff's failure to prosecute, as well as his failure to comply with the orders of this Court.
II. REPORT
The Complaint in this matter was submitted without filing fee or a motion for leave to proceed in forma pauperis (“IFP”). A deficiency order was issued on July 22, 2021. ECF No. 2. That order was returned to this Court as undelivered, and was re-mailed to Plaintiff on August 4, 2021. ECF No. 3.
Plaintiff submitted an IFP motion on September 10, 2021, which did not cure all of the deficiencies identified in the Order of July 22, 2021. ECF No. 6. Consequently, the undersigned issued a Second Deficiency Order on September 13, 2021. ECF No. 9. A copy of the Second Deficiency Order was mailed to Plaintiff's address of record.
As of this date, Plaintiff has failed to respond to the Second Deficiency Order, or otherwise cure the filing deficiency identified therein.
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 dismissal of 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 filing deficiency and for failing to respond to the Second Deficiency Order. ECF No. 9.
(2) Prejudice to the adversary
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 deficiencies with the motion to proceed IFP, and has not responded to the Second Deficiency Order. 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 correcting his filing deficiencies 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
The factual allegations in the Complaint do not state a plausible claim for relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To the extent that any claim may be discerned from the Complaint, the same appears to be barred by the Supreme Court's holding in Heck v. Humphrey. 512 U.S. 477, 486-87 (1994).
Because five 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).
Hon. Marilyn J. Horan, United States District Judge