Opinion
Civil Action 2:21-1726
07-13-2022
TYRONE XAVIER PRICE, JR., Plaintiff, v. WESTMORELAND COUNTY PRISON, Defendant.
REPORT AND RECOMMENDATION
PATRICIA L DODGE, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Complaint be dismissed for failure to prosecute.
II. Report
On February 16, 2022, an order was entered (ECF No. 9) directing Plaintiff Tyrone Xavier Price, Jr. to amend his complaint, which asserts a Section 1983 claim, to correct certain deficiencies. When he failed to respond, a second order was issued on May 17, 2022 (ECF No. 13) directing Plaintiff to comply by June 17, 2022. However, Plaintiff has not amended his complaint, sought an extension to do so or otherwise communicated with the Court since the issuance of this order.
As Plaintiff was previously informed, the Complaint (ECF No. 7) is deficient because Plaintiff names only Westmoreland County Prison as a defendant and a correctional facility is not a “person” for purposes of Section 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Foye v. Wexford Health Sources Inc., 675 Fed.Appx. 210, 215 (3d Cir. 2017); Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973); Regan v. Upper Darby Twp., No. 06-cv-1686, 2009 WL 650384, at *4 (E.D. Pa. Mar. 11, 2009) (collecting cases); Levys v. Harper, 2018 WL 2745261, at *3 (W.D. Pa. May 15, 2018).
Thus, Plaintiff was advised that in order for this case to proceed, it was necessary to file an amended complaint that named as defendants the individual or individuals who took the actions that allegedly violated his constitutional rights. He was also informed that his failure to do so could lead to the dismissal of his case for failure to prosecute.
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. 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 for the Third Circuit, “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). 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.”). Since the filing of this matter, Plaintiff has ignored multiple orders of this Court directing him to correct the deficiencies in his Complaint. 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 “continued failure to communicate with the Court and continued inaction 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 weighs strongly in favor of dismissal. Since filing a motion to proceed in forma pauperis on December 16, 2021, Plaintiff has failed to comply with court orders and has otherwise taken no action to advance his case. This conduct is sufficient 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]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. While it is difficult to evaluate willfulness on the limited record available, Plaintiff has failed to comply with two court orders. There is no reason to believe that he is not receiving the Court's orders since none of them have been returned as undeliverable, or that he is prevented from filing documents with this Court. Under the circumstances, the Court must conclude that Plaintiff's decision not to communicate with the Court and comply with court orders is intentional. See, e.g., Quadr v. Overmyer, 642 Fed.Appx. 100, 103 (3d Cir. 2016) (the district court correctly concluded that the plaintiff's actions were willful when he would not accept mail from the court, failed to respond to a motion to dismiss, and repeatedly missed deadlines). Thus, in the absence of any explanation for Plaintiff's failure to comply with court orders or otherwise seek to advance his claim, this factor weighs in favor of dismissal.
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 merits 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. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not the summary judgment standard, is applicable in the Poulis analysis. Briscoe, 538 F.3d at 263. Plaintiff's failure to prosecute this action makes it difficult to determine whether his claim of being strip searched has or could have potential merit, even if he had named a proper defendant. Thus, this final Poulis factor does not weigh in favor of dismissal. However, as set forth above, none of the Poulis factors are dispositive and not all of them need to be met for a district court to find that dismissal is warranted.
In conclusion, at least five of the six Poulis factors weigh in favor of 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.
III. Conclusion
For these reasons, it is recommended that this case be dismissed for failure to prosecute.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by August 1, 2022. Failure to file timely objections will waive the right of appeal.