Opinion
CIVIL 3:23-CV-01328
06-04-2024
KURT J. SHOTKO, Plaintiff v. THE COUNTY OF LACKAWANNA, PENNSYLVANIA, et al., Defendants
MEHALCHICK, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge
I. INTRODUCTION
Kurt J. Shotko (“Plaintiff”) brings this civil rights case alleging a violation of his First Amendment rights. For the reasons explained below it will be recommended that this case be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff's failure to prosecute his case.
II. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff initiated this case on August 10, 2023, by lodging a Complaint. (Doc. 1). Plaintiff sought and was granted leave to proceed in forma pauperis and his Complaint was served. As Defendants, Plaintiff names:
(1) The County of Lackawanna, Pennsylvania;
(2) Jerry Notarianni, Lackawanna County Commissioner;
(3) Debi Domenick, Lackawanna County Commissioner;
(4) Chris Chermak, Lackawanna County Commissioner; and
(5) Fred Dean, Lackawanna County Employee.(Doc. 1, p. 2).
Plaintiff alleges that on September 6, 2021, during the La Festa event on Courthouse Square in Scranton, Pennsylvania, he set up his “annual public education display.” (Doc. 1, p. 2). During the event, Plaintiff alleges that Lackawanna County Employee Fred Dean engaged in content and viewpoint discrimination in violation of Plaintiff's First Amendment rights. (Doc. 1, p. 1). Plaintiff asserts that Defendant Dean told Plaintiff he was on private property that the County owned and then proceeded to grab the “public education signs” Plaintiff had been displaying on the grass of the Courthouse and throw them into a pile. (Doc. 1, pp. 1, 3). Defendant Dean was allegedly video recorded during the incident, with the video now available on YouTube. (Doc. 1, p. 3). Plaintiff asked Defendant Dean if he was working for “Organized Criminals” and if he was a “member of the Culture of Corruption?” Id. Defendant Dean did not answer but walked away and never returned. Id. The “public education” then continued peacefully. Id.
In their Motion for Summary Judgment, Defendants Chermak, Domenick, Notarianni, and Lackawanna County allege the County has never employed anyone with the name Fred Dean. (Doc. 18, p. 2).
Plaintiff brings his lawsuit under the First Amendment of the United States Constitution, which the Court construes as a claim under 42 U.S.C. § 1983 for the violation of his First Amendment rights. (Doc. 1, p. 1). As relief, Plaintiff requests the Court declare Defendants were in violation of his First Amendment rights, enter a permanent injunction prohibiting Lackawanna County and its directors, officers, agent and employees from arresting or attacking peaceful and legal activities, and award Plaintiff compensatory and punitive damages in the amount to be determined at trial. (Doc. 1, p. 3).
On January 8, 2024, Defendants Chermak, Domenick, Notarianni, and Lackawanna County filed a Motion for Summary Judgment. (Doc. 17). On January 11, 2024, these Defendants filed a Brief in Support (Doc. 23) and on January 12, 2024, a Statement of Facts (Doc. 24). On February 13, 2024, the Court issued an Order instructing Plaintiff to file a brief in opposition and responsive statement of material facts. (Doc. 28). Plaintiff did not. On March 25, 2024, the Court issued a second Order instructing Plaintiff to file a brief in opposition and responsive statement of material facts. (Doc. 29). Plaintiff has not. On May 6, 2024, the Court issued an Order instructing Plaintiff to provide a correct address for Defendant Dean. (Doc. 30). Plaintiff has not.
III. FEDERAL RULE OF CIVIL PROCEDURE 41(B) LEGAL STANDARD
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute or comply with a court order, stating that: “If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” A court's authority to dismiss extends past granting a motion by the defendant. In fact, “[u]nder Rule 41(b), a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order.” “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in the courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”
Fed.R.Civ.P. 41(b); Price v. Williams, No. 1:08-CV-583, 2019 WL 1620287, at *3 (M.D. Pa. Apr. 16, 2019) (citing Woods v. Malinowski, No. 17-17, 2018 WL 3999660, at *1 (W.D. Pa. July 18, 2018), report and recommendation adopted as modified, 2018 WL 3997344 (W.D. Pa. Aug. 21, 2018)).
Qadr v. Overmyer, 642 Fed.Appx. 100, 102 (3d Cir. 2016) (per curium) (citing Fed.R.Civ.P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (recognizing that a court can dismiss a case sua sponte under Rule 41(b)).
Qadr, 642 Fed.Appx. at 102.
Decisions regarding dismissal of actions for failure to prosecute or comply with a court order rest in the sound discretion of the Court and will not be disturbed absent an abuse of that discretion. That discretion, while broad, is governed by the following factors, commonly referred to as Poulis factors:
Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted).
(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. (citing Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)).
“In balancing the Poulis factors, [courts] do not [employ] a . . . ‘mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case.” Consistent with this view, it is well-settled that “no single Poulis factor is dispositive,” and that “not all of the Poulis factors need be satisfied in order to dismiss a complaint.”
Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008) (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).
Id. (internal citations and quotations omitted).
IV. ANALYSIS
We begin by noting that in general, the Court is “required to consider and balance [the six Poulis factors] when deciding, sua sponte, to use dismissal as a sanction. When a litigant's conduct makes adjudication of the case impossible, however, such balancing under Poulis is unnecessary.” Plaintiff's conduct in this case has made adjudication of the case impossible. Nevertheless, we will analyze the Poulis factors.
Azubuko v. Bell Nat. Org., 243 Fed.Appx. 728, 729 (3d Cir. 2007).
The first Poulis factor requires that the Court consider the party's personal responsibility. Plaintiff is proceeding pro se in this case. His status, however, does not excuse Plaintiff from his obligation to abide by Orders of the Court. The sole responsibility for meeting those obligations in this case is Plaintiff's. Plaintiff has not met his obligations in this case because he did not properly respond to the Court's Orders directing him to respond to Moving Defendants' Motion for Summary Judgment, and provide a correct address for Defendant Dean. (Docs. 28, 29, 30). Accordingly, we find that the first factor weighs in favor of dismissal.
Cannon v. Moore, No. 1:19-CV-1700, 2022 WL 2932218, at *5 (M.D. Pa. June 17, 2022) (finding that a pro se litigant was responsible for failing to comply with the Court's rules and orders), report and recommendation adopted, 2022 WL 2918898 (M.D. Pa. July 25, 2022).
The second Poulis factor requires that the Court consider whether Plaintiff's conduct has resulted in any prejudice to Defendants. In this context, examples of prejudice are “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.” Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. “[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Plaintiff's failure to respond to Court Orders frustrates and delays the resolution of this action. Moving forward, Plaintiff's failure to litigate would prejudice Defendants, who could not seek a timely resolution of the case where Plaintiff fails to timely respond. Accordingly, we find that the second factor weighs in favor of dismissal.
Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984).
Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003).
Id.
The third Poulis factor requires the Court to consider whether Plaintiff has exhibited a history of dilatoriness over the life of this case. “[C]onduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness.'”“Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders.” On the whole, despite failing to respond to three Court Orders, Plaintiff does not have a history of dilatoriness over the life of this case. We find the third factor weighs against dismissal.
Adams, 29 F.3d at 875 (“a party's problematic acts must be evaluated in light of its behavior over the life of the case.”).
Briscoe, 538 F.3d at 261.
Adams, 29 F.3d at 874.
The fourth Poulis factor requires the Court to consider whether Plaintiff's conduct was willful or in bad faith. In this context, “[w]illfulness involves intentional or self-serving behavior.” Plaintiff's failure to comply with four Court orders “demonstrate['] a willful disregard for procedural rules and court directives.” Further, both Briefing Orders and the Order instructing Plaintiff to provide an updated address for Defendant Dean warned Plaintiff that failure to comply with those Orders may lead to his Complaint being dismissed. (Docs. 28, 29, 30). Based on this, we infer that Plaintiff's failure to respond was a deliberate choice. Accordingly, we find that the fourth factor weighs in favor of dismissal.
Id. at 875.
Gilyard v. Dauphin Cnty. Work Release, No. 10-1657, 2010 WL 5060236, at *2 (M.D. Pa. Dec. 6, 2010).
The fifth Poulis factor requires the Court to consider the effectiveness of alternate sanctions. Dismissal is a sanction of last resort, and it is incumbent upon a court to explore the effectiveness of lesser sanctions before ordering dismissal. In general, “sanctions less than dismissal [are] ineffective when a litigant, such as [Plaintiff], is proceeding pro se. ” “This case presents such a situation where the plaintiff's status as a pro se litigant severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion.” Further, Plaintiff is proceeding in forma pauperis in this case. Therefore, it is unlikely that monetary sanctions would be effective. Finally, Plaintiff's failure to respond to the Court's prior Orders leads to an inference that further orders would not be effective. Accordingly, we find that the fifth factor weighs in favor of dismissal because no other sanction would be effective.
Poulis, 747 F.2d at 868.
Lopez v. Cousins, 435 Fed.Appx. 113, 116 (3d Cir. 2011); Emerson, 296 F.3d at 184.
Stephens v. Mosher, No. 3:22-CV-645, 2024 WL 1501801, at *3 (M.D. Pa. Mar. 4, 2024), report and recommendation adopted, 2024 WL 1494438 (M.D. Pa. Apr. 5, 2024).
The sixth and final Poulis factor requires the Court to consider the meritoriousness of the claim. A claim is deemed “meritorious” for the purposes of the Poulis analysis when the allegations of the complaint, if established at trial, would support recovery. To evaluate this factor, a court uses the standard for a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. We do not believe consideration of this factor can save Plaintiff's claims because Plaintiff “is now wholly non-compliant with the court's instructions. [Plaintiff] cannot refuse to comply with court orders which are necessary to allow resolution of the merits of [his] claims, and then assert the untested merits of these claims as grounds for declining to dismiss the case.” Due to the procedural posture of the case, the Court has not yet had occasion to analyze Plaintiff's Complaint on its merits. Thus, the Court “cannot say as a matter of law whether [Plaintiff's] complaint has merit.” However, Defendants have “presented summary judgment arguments which since they are not rebutted appear to be meritorious.”Accordingly, the Court finds this factor weighs in favor of dismissal.
Poulis, 747 F.3d at 870.
Briscoe, 538 F.3d at 263.
Stephens, 2024 WL 1501801, at *3.
Dorsey v. Marsh, No. 1:23-CV-01390, 2023 WL 8259259, at *2 (M.D. Pa. Nov. 29, 2023).
Id.
Fowler v. Tennis, No. 3:09-CV-01726, 2011 WL 1988418, at *3 (M.D. Pa. May 2, 2011), report and recommendation adopted, 2011 WL 1990555 (M.D. Pa. May 23, 2011).
Again, “no single Poulis factor is dispositive,” and “not all of the Poulis factors need be satisfied in order to dismiss a complaint.”28 Upon balancing the Poulis factors as they apply to this case, the Court finds those factors weigh in favor of dismissal of this action for lack of prosecution.
V. RECOMMENDATION
Accordingly, it is recommended that:
(1) This case be DISMISSED without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure;
(2) Defendants' Motion for Summary Judgment (Doc. 17) be DEEMED MOOT; and
(3) The Clerk of Court be DIRECTED to CLOSE this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.