Opinion
2:22-CV-00720-CRE
03-15-2023
JAMES A. PALUCH JR., WILLIE M. HARRIS, AND THOSE SIMILARLY-SITUATED; Plaintiffs, v. GEORGE LITTLE, SECRETARY, PA DEPT. OF CORRECTIONS; ERIC T. ARMEL, FACILITY MANAGER; JOSEPH TREMPUS, DEPUTY SUPERINTENDENT, FACILITY MGMT.; CO1 CAVALIERE, PRISON GUARD; SGT. TYNER, SGT. SHEETZ, SGT. OHRMAN, J. BURNS, PRISON GUARD; HELMAN, PRISON GUARD; RANKIN, PRISON GUARD; N. HALKIAS, PRISON GUARD; COFFMAN, PRISON GUARD; POLITO, PRISON GUARD; B. TWARDZIK, PRISON GUARD; DELSANDRO, PRISON GUARD; AND J. THOMAS, PRISON GUARD; Defendants,
JAMES A. PALUCH, JR. BQ3769 SCI FOREST PRO SE WILLIE M. HARRIS DK1644 SCI FAYETTE PRO SE
JAMES A. PALUCH, JR. BQ3769 SCI FOREST PRO SE
WILLIE M. HARRIS DK1644 SCI FAYETTE PRO SE
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, United States Magistrate Judge
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that Plaintiff Willie M. Harris be dismissed as a plaintiff from this case for failure to prosecute and for non-compliance with Court Orders, pursuant to Poulis v. St.ate Farm Fire & Cas. Co., 747, F.2d 863 (3d Cir. 1984).
II. REPORT
On May 16, 2022, Plaintiff James A. Paluch initiated the instant action by filing a motion for leave to proceed in forma pauperis (“IFP”). (ECF No. 1). In his Complaint attached to that motion, Plaintiff Paluch included Willie M. Harris as a plaintiff. (ECF No. 1-1). Since Plaintiff Paluch only submitted a motion for leave to proceed IFP for himself, and because Plaintiff Harris did not sign the Complaint, this Court entered an order denying the motion. (ECF No. 6).
On September 29, 2022, Plaintiff Paluch requested that this matter be consolidated with a case he previously filed at 2:21-cv-1564, which was assigned to Magistrate Judge Patricia L. Dodge. (ECF No. 9). This Court entered an order deferring ruling on that motion until such time Plaintiff Harris either pays a filing fee, files a petition for leave to proceed IFP, or files a motion notice of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (ECF No. 10).
On September 13, 2022, this Court entered an order stating that Plaintiff Harris was required to either submit IFP paperwork or pay the $402 filing fee on or before October 17, 2022. (ECF No. 8). On November 18, 2022, Plaintiff Harris filed a motion for leave to proceed IFP.(ECF No. 16). However, he did not include the form to authorize payments from his inmate account. Thus, this Court entered an order on November 21, 2022, requiring Harris to provide that authorization by December 16, 2022. (ECF No. 17).
In addition to the application to proceed in forma pauperis, a plaintiff must submit “an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). In addition to the aforementioned affidavit, also attached to the motion must be a “certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . ., obtained from the appropriate official of each person at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).
Having not received that authorization from Plaintiff Harris to permit this matter to proceed, on February 14, 2023, this Court issued an Order to Show Cause on Plaintiff Harris, requiring him to respond and show cause why he should not be dismissed as a Plaintiff from this action with prejudice for his failure to prosecute. This Court further indicated that Plaintiff Harris's failure to respond would result in the dismissal of him as a Plaintiff for failure to prosecute and follow this Court's orders. (ECF No. 20). To date, Plaintiff Harris has failed to respond.
The Court cannot properly control its docket, move this action forward, and properly protect the rights of all parties if the Plaintiff fails to comply with orders issued by this Court, specifically if he fails to pay a filing fee or provide the authorization form necessary to permit him to proceed IFP.
Plaintiff's failure to comply with a court order constitutes a failure to prosecute this action, and therefore, this action is subject to dismissal subject to Federal Rule of Civil Action 41(b). A district court has inherent power to dismiss a complaint, sua sponte, under Federal Rule of Civil Procedure 41(b) for a plaintiff's failure to comply with an order of court. 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).”); Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). Furthermore, a court's decision to dismiss for failure to prosecute is committed to the court's sound discretion. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 230 (3d Cir. 1998) (“We review for abuse of discretion a district court's dismissal for failure to prosecute pursuant to Rule 41(b).”), abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007). In exercising that discretion, a district court should, to the extent applicable, consider the six factors identified in Poulis, supra, when it levies the sanction of dismissal of an action for failure to obey discovery schedules, failure to prosecute, or to comply with other procedural rules. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995).
The Court of Appeals for the Sixth Circuit has commented that “while pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Thus, a pro se litigant's failure to comply with a court order is not the same as “inartful pleading or [a] lack of legal training.” Id. at 110.
In Poulis, the Court of Appeals for the Third Circuit set forth the following six factors to be weighed in considering whether dismissal is proper:
(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. 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 these factors follows.
1. The extent of the party's personal responsibility.
Plaintiff Harris is proceeding in this matter pro se. This Court ordered Plaintiff Harris to file an authorization form, and even included the blank form for him to fill out. (ECF Nos. 17). He did not do so. Nor did Plaintiff respond to this Court's rule to show cause. There is no indication that Plaintiff failed to receive any of the orders the Court has mailed him. The responsibility for his failure to comply is Plaintiff Harris's alone.
2. Prejudice to the adversary.
Plaintiff Harris has prejudiced Plaintiff Paluch, as this case, along with Paluch's other case, could not proceed fully until Harris responds. Although Defendants have not yet been served in this case, by failing to respond to this Court's orders, disposition of this matter has been unduly delayed.
3. A history of dilatoriness.
Plaintiff Harris has made no effort to move this case forward and has ignored two of this Court's orders. This is sufficient evidence, in the Court's view, to indicate that Plaintiff Harris does not intend to proceed with this case.
4. Whether the party's conduct was willful or in bad faith.
There is no indication on this record that Plaintiff's failure was the result of any excusable neglect. Thus, the conclusion that his failure is willful is inescapable.
5. Alternative sanctions.
Plaintiff has requested to proceed IFP, and thus, it is likely that any sanction imposing costs or fees upon him would be ineffective.
6. Meritorious of the claim or defense.
At this early stage of the litigation, it is difficult to assess the meritoriousness of Plaintiff's claims. The issue is unclear without full proceedings. This factor neither weighs for or against dismissal.
In summary, at least five of the six Poulis factors weigh heavily in favor of Plaintiff Harris's dismissal. Accordingly, it is respectfully recommended that Plaintiff Harris be dismissed with prejudice for his failure to prosecute. Furthermore, to the extent this Report and Recommendation is adopted by the District Court, the undersigned also respectfully recommends that this matter be re-assigned to Magistrate Judge Dodge, who can then consider Plaintiff Paluch's outstanding motions, including the motion to consolidate.
III. Conclusion
Based on the discussion above, it is respectfully recommended that Plaintiff Harris be dismissed as a plaintiff from this action for failure to prosecute.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiffs, because they a non-electronically registered parties, must file objections to this Report and Recommendation by April 3, 2023. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Cathy Bissoon, United States District Judge