Opinion
Civil Action 22 - 609
08-31-2022
TROY ANTHONY NAYLOR, JR., Plaintiff, v. WILLIAM KEMP, III, Defendant.
Christy Criswell Wiegand, District Judge
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan, United States Magistrate Judge
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that this case be dismissed with prejudice for Plaintiff's failure to prosecute due to Plaintiff's failure to comply with this Court's orders to return his Authorization Form and pay an initial partial filing fee.
II. REPORT
A. Procedural History
This case was initiated by Plaintiff Troy Anthony Naylor, Jr. (“Plaintiff”) on April 25, 2022. (ECF No. 1.) Plaintiff's Complaint was docketed after his Motion for Leave to Proceed in forma pauperis was granted on April 29, 2022. (ECF Nos. 4 & 5.) On that same day, Plaintiff was directed to complete and return an Authorization Form to authorize monthly payments from his inmate account. He was also directed to pay an initial partial filing fee of $31.77. (ECF No. 4.) Plaintiff was warned that this action could be dismissed for failure to prosecute if he failed to return the Authorization Form or pay the initial partial filing fee. Id. When the Court did not receive either, an Order to Show Cause was entered on June 9, 2022. (ECF No. 8.) Plaintiff was told that if he did not return his Authorization Form or pay the initial partial filing fee by June 24, 2022, and if he did not show cause why he could not do so by that day, then the undersigned would recommend that this action be dismissed for his failure to prosecute. Id. As of today, Plaintiff has not complied with the Court's orders.
B. Discussion
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim, and, under this Rule, “a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order.” Qadr v. Overmyer, No. 15-3090, 642 Fed.Appx. 100, 102 (3d Cir. 2016) (per curiam) (citing Fed.R.Civ.P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (“The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b).”)
The Third Circuit Court of Appeals has stated that “a district court dismissing a case sua sponte ‘should use caution in doing so because it may not have acquired knowledge of the facts it needs to make an informed decision.'” Qadr v. Overmyer, No. 15-3090, 642 Fed.Appx. 100 at 103 (quoting Briscoe, 538 F.3d at 258). Before engaging in a sua sponte dismissal, “the district court ‘should provide the plaintiff with an opportunity to explain his reasons for failing to prosecute the case or comply with its orders.'” Id. (quoting Briscoe, 538 F.3d at 258).
By Order to Show Cause dated June 9, 2022, Plaintiff was advised that his failure to return his Authorization Form and to pay the initial partial filing fee, or otherwise show cause why could not do so, would result in the dismissal of this action for his failure to prosecute. Having been given ample opportunity to do so, Plaintiff has failed to comply with the Court's orders.
1. The Poulis Factors
In Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper under Rule 41(b):
(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 the 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 (emphasis omitted). In balancing the Poulis factors, no single factor is dispositive, nor do all factors need to be satisfied to result in dismissal of the complaint. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). However, in determining whether a dismissal is warranted, the Court must analyze the factors in light of the “strong policy favoring decisions on the merits.” Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019). The Third Circuit has emphasized that “dismissals with prejudice or defaults are drastic sanctions, termed ‘extreme' by the Supreme Court,” and that they “must be a sanction of last, not first, resort.” Poulis, 747 F.2d at 867-68, 869 (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)). “Cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand, 923 F.3d at 132.
2. Application of the Poulis Factors
a. The extent of the party's personal responsibility.
“[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.” Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 873 (3d Cir. 1994). In determining personal responsibility for the delay, the Court must distinguish “between a party's responsibility for delay and counsel's responsibility.” Hildebrand, 923 F.3d at 133 (citing Poulis, 747 F.2d at 868). A plaintiff is not conjecturally responsible for her counsel's delay. Id. Any doubt as to personal responsibility should be resolved “‘in favor of reaching a decision on the merits.'” Id. at 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Here, Plaintiff is proceeding pro se, so the responsibility for failing to comply with orders is his alone. Thus, this factor weighs in favor of dismissal.
b. Prejudice to the adversary.
Prejudice to the adversary is a substantial factor in the Poulis analysis; but like any other factor, it is not dispositive. Hildebrand, 923 F.3d. at 134. “Relevant examples of prejudice include ‘the irretrievable loss of evidence[] [and] the inevitable dimming of witnesses' memories.'” Id. (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). A party is not required “to show ‘irremediable' harm for [this factor] to weigh in favor of dismissal.” Id. (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). If the opposition is unable to prepare “a full and complete trial strategy” then there is sufficient prejudice to favor dismissal. Id. (citation omitted).
Here, the Defendants in this case have not yet been served with the Complaint. Since they have not yet had to spend time and resources preparing any pleadings, they have suffered no prejudice.
c. A history of dilatoriness.
A history of dilatoriness is generally established by repeated “delay or delinquency.” Adams, 29 F.3d at 874. While once or twice is normally insufficient, this factor weighs in favor of dismissal where the plaintiff has a history of repeated delay. Hildebrand, 923 F.3d at 135 (citation omitted). In addition to repeated acts, “extensive” delay can also create a history of dilatoriness. Adams, 29 F.3d at 874. A “failure to prosecute” does not require that plaintiff take affirmative “steps to delay the trial … It is quite sufficient if [he/she] does nothing .… ” Id. at 875 (citation omitted).
“While extensive delay may weigh in favor of dismissal, ‘a party's problematic acts must be evaluated in light of its behavior over the life of the case.'” Hildebrand, 923 F.3d at 135 (quoting Adams, 29 F.3d at 875). Thus, where a plaintiff has not been previously delinquent the weight given to even a long delay should be mitigated. Id.
While Plaintiff does not have a long history of dilatoriness, given that these proceedings are still in their infancy, Plaintiff has failed to comply with a Court Order to authorize monthly payments from his inmate account to pay the filing fee for this case. He then failed to respond to the subsequent show cause Order. This is sufficient evidence, in the Court's view, to indicate that Plaintiff no longer desires to proceed with this action. Thus, this factor weighs in favor of dismissal.
d. Whether the party's conduct was willful or in bad faith.
In determining if plaintiff's conduct constituted willful or bad faith, the “court should look for ‘the type of willful or contumacious behavior' that can be characterized as ‘flagrant bad faith,' such as [a case history of] failing to answer interrogatories for nearly a year and a half, demanding numerous extensions, ignoring admonitions by the court, and making false promises to correct delays.” Id. (citing Scarborough, 747 F.2d at 875 (citation omitted)). “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Although “[a] lengthy delay reflects ‘inexcusable negligent behavior,' id. at 876, . . . that behavior alone does not rise to the level of willfulness or bad faith.” Hildebrand, 923 F.3d at 135.
Finally, “[b]ecause the harsh sanction of dismissal should serve to deter bad faith or self-serving behavior, and because of our policy of favoring decisions on the merits, [in the absence of evidence] that the delay was not effectuated willfully or in bad faith, [this factor] should weigh against dismissal.” Id. at 136.
There is no indication on this record that Plaintiff's failure was the result of any excusable neglect. Therefore, this factor weighs in favor of dismissal.
e. Effectiveness of sanctions other than dismissal.
A district court must thoroughly consider “alternative sanctions before dismissing a case with prejudice.” Id. (citing Briscoe, 538 F.3d at 262). The court should also provide an analysis of effectiveness sufficient “to honor [the] longstanding tradition of favoring decisions on the merits.” Id. In so doing, the court should be mindful that “[a]lternatives are particularly appropriate when the plaintiff has not personally contributed to the delinquency.” Poulis, 747 F.2d at 866 (citations omitted). “[A]lternative sanctions need only be effective toward mitigating the prejudice caused by dilatory behavior or delinquency.” Hildebrand, 923 F.3d at 136. They are not required to be “completely amelioriative.” Id.
Plaintiff is proceeding in forma pauperis in this case so it is unlikely that any sanction imposing costs or fees upon him would be effective. Therefore, the Court can see no alternative sanction that would be appropriate other than dismissal.
f. Meritoriousness of claim or defense.
“The standard for determining whether a plaintiff's claims are meritorious ‘is moderate.'” Adams, 29 F.3d at 876. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not a summary judgment standard, is applicable in a Poulis analysis. Id. at 869-70.
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” (Fowler [v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (citation omitted)]; see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18, (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
Plaintiff's Complaint alleges that Defendant Kemp, a Corrections Office at Allegheny County Jail, called him a “rat” in front of the inmates on his pod because Plaintiff had spoken to an Internal Affairs detective on two different occasions about Defendant Kemp smuggling in chewing tobacco and using his Apple watch while on duty. Being labeled a “snitch” or a “rat” can be a dangerous designation in prison. See, e.g., Easley v. Tritt, 2021 WL 978815, at *13 (M.D. Pa. Mar. 16, 2021) (citing Moore v. Mann, 823 Fed.Appx. 92, 96 (3d Cir. 2020) (recognizing that “other circuits have held that prison officials' failure to protect an inmate labeled a ‘snitch' constitutes deliberate indifference”). Finding that a prisoner had stated a failure to protect claim, the Third Circuit Court of Appeals has held that a prisoner was exposed to a substantial risk of harm when it became known to other inmates that he was cooperating with an FBI investigation into gang activity. Bistrian v. Levi, 696 F.3d 352, 368-70 (3d Cir. 2012). Prison officials showed deliberate indifference to that substantial risk of harm when even though they knew he was facing threats from those other inmates, prison officials placed him in a locked recreation yard pen with them which resulted in an assault. Id. This Court has also held that a plaintiff stated a failure to protect claim when a corrections officer “was deliberately indifferent to [the plaintiff's] safety when he called Plaintiff a ‘snitch' in front of other inmates . . . . and told other inmates that Plaintiff was ‘working with prison security.'” Brown v. Shrader, 2015 WL 5027510, at *3 (W.D. Pa. Aug. 25, 2015). This created a substantial risk of harm that other inmates would punish the plaintiff for cooperating with prison officials. Id. (citing Bistrian, 696 F.3d at 371). It is established that calling an inmate a snitch for complaining to corrections officers about another inmate when stated in front of other prisoners creates a substantial risk of harm from inmates seeking to punish that so-called snitch or keep him silent. See Benefield v. McDowall, 241 F.3d 1267, 1270-71 (10th Cir. 2001) (allegation that defendant spread rumors inmate was snitching on other inmates to prison investigations staff created substantial risk of harm).
Some courts have also held that labelling an inmate a snitch created a substantial risk of harm in contexts where it was ambiguous if the defendant meant that the inmate was snitching on prison officials or other inmates. See, e.g., Rodriguez v. Hayman, 2009 WL 4122251, at *7 (D.N.J. Nov. 23, 2009) (“An inmate being labeled a snitch creates a substantial risk of harm.”). The Third Circuit concluded that there was “a genuine dispute regarding whether the defendants were deliberately indifferent to the risk of telling other inmates that Moore was gay, a pedophile, or a snitch.” Moore, 823 Fed.Appx. at 96. The court in Moore relied on other circuit court of appeals decisions to conclude that “prison officials' failure to protect an inmate labeled a ‘snitch' constitutes deliberate indifference.” Id. (citing Irving v. Dormire, 519 F.3d 441, 451 (8th Cir. 2008) (“After all, who better knows the opprobrium and consequent effect thereof that attaches to the label of snitch than those who work daily within the inmate population.”); Benefield, 241 F.3d at 1271; Northington v. Marin, 102 F.3d 1564, 1567 (10th Cir. 1996)). Even though the plaintiff in Moore had not been assaulted, the court said that “an inmate need not wait until an actual attack occurs to obtain relief.” Id. Moreover, it is a relevant consideration whether the plaintiff is in the presence of other inmates because an inmate is not put at a substantial risk of harm by being called a snitch with no one around; it is being around other inmates that makes a difference. See Hendrickson v. Emer. Med. Servs, 1996 WL 472418, at *5 (E.D. Pa. Aug. 20, 1996) (citations omitted).
Although Moore is distinguishable from this case because in that case, and those it relied on, the inmate was either accused in general of being a snitch or of snitching on other inmates, and Plaintiff's claim here is that Defendant Kemp called him a “rat” for speaking to investigators about him, Plaintiff being labeled a “rat” by Defendant Kemp may constitute an Eighth Amendment violation if he acted with deliberate indifference to a substantial risk of serious harm to Plaintiff. There are no factual allegations in the Complaint that indicate Plaintiff feared an assault from another inmate because Defendant Kemp called him a “rat” or that Defendant Kemp called him a “rat” knowing that it could potentially result in Plaintiff's assault. Therefore, Plaintiff's claim against Defendant Kemp does not state a claim a then Plaintiff would likely be given an opportunity to file an ame undersigned finds that this factor weighs neither for nor against dismissed.
Given that the majority of the Poulis factors do weigh in f undersigned recommends that the case be dismissed.
II. CONCLUSION
For the aforementioned reasons, it is respectfully recomm dismissed with prejudice for Plaintiff's failure to prosecute insofa comply with this Court's orders to return his Authorization Form fee.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.