Opinion
1:21-CV-00324-SPB
09-13-2022
LARRY RAFIQ SAMUELS, Plaintiff v. FRM SUPERINTENDENT M. OVERMYER, SUPERINTENDENT DEREK OBERLANDER, LT. WALKER, LT. DICKEY, Defendants
IN RE: ECF NO. 7
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
It is respectfully recommended that the Complaint filed in the above-captioned case, ECF No. 3, be dismissed for failure to prosecute.
II. REPORT
Plaintiff Larry Rafiq Samuels (“Plaintiff') brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 for the alleged violation of his Fourth, Eighth, and Fourteenth Amendment rights under the United States Constitution. ECF No. 7. Plaintiff names as Defendants SCI Forest former Superintendent M. Overmyer, Superindent Derek Oberlander, and Heads of Security/Operations Lt. Walker and Lt. Dickey. Id.
On January 24, 2022, the Court entered an order requiring Plaintiff to provide the Court with proper instructions for service upon each of the four named Defendants listed in the Complaint, including a United States Marshal Form 285 and completed notice and waiver of summons for each defendant on or before February 24, 2022. ECF No. 6.
On January 24th, 2022, Plaintiff moved to Appoint Legal Counsel. See ECF 9.
Although irrelevant for purposes of this Order, Plaintiff also filed a Complaint (ECF 7) and Motion for Injunctive Relief (ECF 8) on January 24, 2022.
On March 2, 2022, the Court issued a Memorandum Opinion and Order denying without prejudice Plaintiffs motion to appoint counsel, as well as ordering Plaintiff
to comply with the Court's Order of January 24, 2022, at ECF No. 6, that he must provide the Court with proper instructions for service upon each of the four named Defendants, including a U.S. Marshal Form 285 for each defendant, a completed notice and waiver of summons for each defendant, and one complete copy of his Complaint and its attached exhibits (127-pages) on or before March 30, 2022, subject to further extension upon reasonable request.ECF No. 12. The Court further warned Plaintiff that “[f]ailure to comply with this order may result in the dismissal of Plaintiff s case for failure to prosecute.” Id.
By July 7,2022, Plaintiff had provided the Court with the four USM 285 forms but not the four copies of his complaint. Accordingly, the Court issued an Order to Show Cause requiring Plaintiff to explain why he failed to comply with the Court's Order or, in the alternative, to provide the copies, by July 21, 2022. See ECF No. 15. This Order reiterated to Plaintiff that his “failure to comply may result in a recommendation that the Court dismiss Plaintiffs civil action for failure to prosecute.” Id. To date, Plaintiff has failed to respond or give any other indication that he wishes to proceed with this action.
The United States Court of Appeals for the Third Circuit has identified a six-factor balancing test to guide a court in determining whether a case should be dismissed for failure to prosecute. Poults v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The courtmust 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).
“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). A close case 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, “[d]ismissal is a sanction rightfully in the district courts' toolbox,” and the Third Circuit “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).
The first Poulis factor requires the Court to consider how much the dilatory party is personally responsible for the sanctionable conduct. 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.”). Despite Plaintiffs receipt of a scheduling order requiring him to file necessary service documents and this Court's issuance of an Order to Show Cause related thereto, Plaintiff has failed to comply or provide just cause for his failure to do so. 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). At this stage of the litigation, this factor weighs against Plaintiff because of the unexcused delay in permitting this action to proceed through service of the Complaint on the identified Defendants. Plaintiffs “continued failure to communicate with the Court and continued inaction [therefore] frustrates and delays resolution of this action.” 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 supports dismissal. Plaintiffs failure to adhere to this Court's Order to Show Cause is the second instance of unexcused delay. See ECF Nos. 6,12. This conduct is sufficient to establish a history of dilatoriness.
As for the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. In this case, there is nothing on the docket to suggest that Plaintiff is not currently receiving the Court's orders, and his failure to comply with the Court's orders therefore appears willful.
The fifth factor address the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that 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). Thus, this factor weighs heavily in favor of dismissal.
Finally, the Court must consider the potential merit of Plaintiff's claims. A claim will be considered meritorious “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. Plaintiffs complaint focuses primarily on his disagreement with the outcome of disciplinary proceedings and resulting disciplinary actions against him. ECF No. 7, ¶¶ 10-23. He alleges that he was involved in an altercation with another inmate on December 3, 2019, during which he suffered injuries requiring hospital treatment. Following the incident, he was issued a misconduct for “fighting” and was later found guilty by the hearing officer. He contends that he was not the aggressor and disputes the hearing officer's finding of his guilt. Id. Although Plaintiffs complaint references terms such as “equal protection” and “discrimination” and invokes his Fourth and Fourteenth Amendment rights, he alleges no facts to support his legal conclusions that any Defendant violated these rights. Id., ¶¶ 52-62. Plaintiff also complains of being placed in a “dry cell” for three days (December 6-9, 2019) until he was cleared of possible contraband. Id., ¶¶ 19-21. He asserts that this placement constituted cruel and unusual punishment in violation of his rights under the Eighth Amendment. But he fails to allege facts to support that the conditions of his relatively brief confinement in the dry cell constituted extreme deprivation of “the minimal civilized measure of life's necessities.” See Gilblom v. Gillipsie, 435 Fed.Appx. 165, 169 (3d Cir. 2011). He also describes his effort to obtain a Z-code designation for a single cell assignment based on psychological need, but he fails to allege facts to support that any Defendant acted with deliberate indifference to his medical or psychological needs. Id., ¶¶ 2430. In sum, Plaintiff s allegations do not appear to support viable claims. Moreover, even if the Court were to assess this Poulis factor as neutral based on the early stage of this case, it would not preclude dismissal. “Not all of these factors need be met for a district court to find dismissal is warranted.” Hicks, 850 F.2d at 156.
On balance, the Court concludes that at least five of the six Poulis factors support dismissal, with the remaining factor (meritoriousness of claim) not weighed against nor in favor of dismissal. While the Court is mindful of the strong policy in favor of deciding cases on the merits, such a resolution is impossible when the plaintiff declines to participate in his own lawsuit. Consequently, the Court concludes that on the record presented here, the extreme sanction of dismissal is supported by the Poulis factors.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that this action be dismissed for Plaintiffs failure to prosecute.
In accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(B) & (C), and Local Rule 72.D.2, Plaintiff may file written objections and responses thereto 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 any appellate rights. Siers v. Morrash, 700 F.3d 113, 116 (3d Cir. 1983). See also Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.