Opinion
Civil Action 2:23-cv-1570
07-26-2024
FREDERICK A. SHERWOOD, JR., Plaintiff, v. FAYETTE COUNTY DRUG & ALCOHOL, et al., Defendants.
J. Nicholas Ranjan, Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that this action be dismissed due to Plaintiff's failure to prosecute.
II. REPORT
A. Procedural History
At all relevant times, Plaintiff Frederick A. Sherwood, Jr. (“Sherwood”) was incarcerated at State Corrections Institute (“SCI”) Pine Grove in the custody of the Pennsylvania Department of Corrections (the “DOC”). On August 31, 2023, Sherwood filed five separate pro se civil rights actions, each accompanied by a motion for leave to proceed in forma pauperis (“IFP”).(See, e.g., ECF No. 1.) The Court granted Sherwood's IFP motion and docketed his Complaint in the present action on November 17, 2023. The Complaint names Fayette County Drug & Alcohol, Ron, C/O Chuck, Fayette County Prison Warrant, and CO Lock as defendants. (ECF No. 50.)
See Docket Nos. 2:23-cv-1567; 2:23-cv-1568; 2:23-cv-1569; 2:23-cv-1570; 2:23-cv-1571. Sherwood now also has a sixth civil rights action pending at Docket No. 3:24-cv-145.
In granting his IFP motion, Sherwood was assessed an initial partial filing fee of $18.10 to be paid within thirty days. (ECF No. 13.) To date, no portion of the $350 filing fee has been paid.
On January 22, 2024, the Court received a $40.00 check from SCI Pine Grove Inmate General Welfare Fund dated January 12, 2024. Because the check did not indicate which of Sherwood's cases the funds should apply to, the Court's Finance Department returned it. The Court instructed Sherwood that he must specify the case number and designate what the funds were intended to pay for. (ECF No. 16.) To date, no further payments have been received in any of his six pending cases.
On May 13, 2024, the Court issued a Deficiency Order (ECF No. 54)directing Sherwood to cure outlined service deficiencies on or before June 9, 2024. The Court provided him with copies of all required service forms prefilled with each defendants' name. The Court warned that failure to comply with the requirements of service may render service of the Complaint impossible and may subject this case to dismissal for failure to prosecute. (Id.) Sherwood requested an extension due to a pending state court appeal. (ECF No. 58.) Based on this, the Court extended his deadline to cure to July 9, 2024. (ECF No. 59.) To date, the deficiencies have not been cured.
The May 13, 2024 Deficiency Order was the third deficiency order issued in this case. (ECF Nos. 4, 7.)
Since commencing this action, Sherwood has sent a barrage of mostly incomprehensible motions and other correspondence to the Court. The captions regularly list multiple case numbers despite numerous Court orders instructing him that the Court will not accept filings with multiple docket numbers. (See, e.g., ECF Nos. 32, 33, 37, 38, 62, 63, 64.) He frequently attempts to amend his Complaint to add new defendants or claims without leave of court. (See, e.g., ECF Nos. 38, 41, 49, 53, 62, 63, 64.) He continuously requests relief that was previously denied. For example, in this case alone, Sherwood has filed: nine (9) motions seeking the appointment of counsel (ECF Nos. 8, 16, 23, 30, 35, 36, 39, 43, 59); seven (7) motions alleging that the Court has somehow “shuffled” or “confused” the subject matter or defendants in this action (ECF Nos. 35, 36, 40, 43, 44, 51, 59); and six (6) motions seeking to consolidate all of his pending civil actions (ECF Nos. 36, 40, 43, 44, 51, 59).
B. Discussion
Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order. See, e.g., Adams v. Trs. of N.J. Brewery Emps' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994). In Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit set forth 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).
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). No single Poulis factor is dispositive and not all six need to weigh in favor of dismissal for it to be warranted. See Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Instead, the court must “properly consider and balance” each of the six factors based on the record. Hildebrand v. Allegheny Cnty., 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). The court must also analyze the factors in light of the “strong policy favoring decisions on the merits.” Id.
The first, third, and fourth Poulis factors-the extent of Sherwood's personal responsibility, his history of dilatoriness, and whether his conduct is willful-each weigh heavily in favor of dismissal. As a pro se litigant, Sherwood is solely responsible for his own conduct. See, e.g., Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002); Winston v. Lindsey, No. 1:09-cv-224, 2011 WL 6000991, *2 (W.D. Pa. Nov. 30, 2011). Sherwood has repeatedly failed to comply with Court orders, including the May 13, 2024 Deficiency Order for which he was granted an extension. He has sent an array of correspondence referencing the May 13, 2024 Deficiency Order, indicating that he is aware of the order but purposefully and willfully has chosen to ignore his obligation to cure the outlined deficiencies. Sherwood has also ignored countless other orders and warnings from the Court, continuing to file motion after motion seeking relief which has already been denied.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. “Examples of prejudice include ‘the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.'” Adams, 29 F.3d at 874 (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). Prejudice also includes “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Briscoe, 538 F.3d at 259. Although this factor may not weigh as heavily in favor of dismissal, it is not neutral either. As of today's date, the defendants named in this action have not been served with the Complaint and are therefore unaware of the impending civil action against them. Indeed, this action has not even advanced to the service stage in the eleven months since it was initiated. Thus, Sherwood's ongoing refusal to comply with Court orders frustrates and indefinitely delays resolution of his claims against these defendants. See Mack v. United States, 2019 WL 1302626, at *3 (M.D. Pa. Mar. 21, 2019) (citing plaintiff's continued failure to communicate with the court and continued inaction as clearly prejudicial to the defendants). As a result, the second Poulis factor weighs at least slightly in favor of dismissal.
The fifth Poulis factor requires the Court to consider the effectiveness of sanctions other than dismissal. It is well-established that monetary sanctions are ineffective where the plaintiff is indigent. See, e.g., Quadr v. Overmyer, 642 Fed.Appx. 100, 103 (3d Cir. 2016) (“Because Appellant had filed this action without the payment of the required filing fee, dismissal would be more effective than monetary sanctions.”); 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, 296 F.3d at 191). As Sherwood has failed to pay any portion of his required filing fee, this factor also weighs heavily in favor of dismissal.
Finally, the Court must consider the potential merit of Sherwood'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. Sherwood asserts claims that are often incomprehensible against various defendants for allegedly violating his constitutional rights by such allegations as being “placed in the hole put in a turtle suit for 5 days . . . all my paperwork was removed or destroyed from the shak[e] down I got something that the nurses said it was he[r]pies[.]” (ECF No. 50 at 4.) Without further inquiry and full evaluation, it is impossible to determine at this time whether Sherwood might ultimately prevail on any of his claims. Thus, this factor is neutral at best.
III. CONCLUSION
In conclusion, the Poulis factors weigh in favor of dismissal. The Court cannot properly control its docket, move this action forward, or properly protect the rights of all involved parties due to Sherwood's failure to comply with Court orders. Therefore, it is respectfully recommended that the Court dismiss this civil action with prejudice for failure to prosecute.
IV. NOTICE
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties may, within fourteen (14) days, file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).