Opinion
3:22-cv-103-KAP
12-20-2022
JOSHUA G. SMITHSON, Plaintiff, v. CORRECTIONAL OFFICER HOWELL, et al. Defendants
REPORT AND RECOMMENDATION RECOMMENDATION
Keith A. Pesto United States Magistrate Judge
I recommend that the complaint be dismissed for failure to prosecute.
Report
This is filed as a Report and Recommendation because in Burton v. Schamp, No. 181174, 2022 WL 405859, 25 F.4th 198 (3d Cir. Feb. 10, 2022), the Court of Appeals held that in cases where only the plaintiff has consented before judgment to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C), the appropriate procedure is for the Magistrate Judge to issue a report and recommendation to the District Court which is vested with the authority to dismiss the parties and enter final judgment in the matter. Accordingly, regardless of any consent or lack thereof by the plaintiff, this format is used because for judgment to be entered in favor of a defendant who has not filed a consent prior to judgment, the matter must be assigned to a District Judge.
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984), the Third Circuit set forth six factors to consider in recommending dismissal of a case as a sanction for failure to prosecute: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary; (3) any history of delay; (4) whether the conduct of the party or attorney at fault was willful or in bad faith; (5) the effectiveness of alternative sanctions; and (6) the merit of the claim or defense. Weighing the Poulis factors, I conclude that dismissal of the complaint is the appropriate sanction. It is not necessary that all the Poulis factors weigh in favor of dismissal. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988). The sanction for failure to prosecute must balance the Court's need to control its own docket against the goal of disposing of litigation on its merits, see In re Asbestos Products Liability Litigation (No. VI), 718 F.3d 236, 246 (3d Cir.2013), recognizing that in the absence of “substantial” reasons to the contrary, cases should be decided on the merits. Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019).
Plaintiff is proceeding pro se and is therefore solely responsible for any lack of action on his part. He has twice been advised that he needs to complete paperwork for service and not responded. It is unlikely that any identifiable prejudice will result to any particular defendant at this point, but as time goes on the possibility of prejudice increases. Alternative sanctions such as monetary penalties are inappropriate with indigent plaintiffs. The merits of any claim by any plaintiff against any defendant are impossible to appraise on the pleadings alone. It is not possible to decide whether the plaintiff's delinquency is willful or stems from a lack of desire to pay for copies, but it is certainly knowing. This matter should be dismissed without prejudice. The third sua sponte grant of an extension of time to serve the complaint would be to reward and encourage delinquent conduct.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they can within fourteen days file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).
Notice by U.S. Mail to:
Joshua Garrett Smithson, #22076
Bedford County Correctional Facility
425 Imlertown Road
Bedford, PA 15522