Opinion
Case No. 2:19-cv-1372-KRG-KAP
08-11-2020
JERRY SHON STEWART, Plaintiff, v. MR. MYERS, Warden, Defendant
Report and Recommendation
Recommendation
I recommend that the complaint be dismissed for failure to prosecute.
Report
Plaintiff, then an inmate at Jefferson County Jail, submitted a complaint subject to the Prison Litigation Reform Act on October 23, 2019, without the filing fee or a motion to proceed in forma pauperis. ECF no. 1. I sent an order to plaintiff on November 12, 2019, and it was returned as undelivered with the notation that plaintiff was no longer at the Jefferson County Jail. On December 9, 2019, I issued an order directing the Clerk to mark this matter administratively closed until the filing fee was paid or plaintiff submitted a motion to proceed in forma pauperis, and noted that if plaintiff did not contact the Clerk, the complaint would be dismissed for failure to prosecute. More than eight months later, plaintiff has not contacted the Clerk with a current address.
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 imposition of a sanction for failure to prosecute must balance the necessity of exercising control over one's 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); Hildebrand v. Allegheny County, 923 F.3d 128, 131-32 (3d Cir.2019).
Here, the plaintiff is proceeding pro se and is therefore solely responsible for any lack of action to advance his case. His failure to take any action is probably more negligent than willful. It is unknown whether delay would result in prejudice to the defendant, but in general memories dim as time goes on. Alternative sanctions such as monetary penalties are inappropriate with indigent plaintiffs (plaintiff has been granted in forma pauperis status in this Court in other cases, e.g., Stewart v. Sobina, Case No. 3:96-cv-331). The complaint as it stands states no claim, and if it could be amended to state a claim its merits would be impossible to appraise at this stage.
Plaintiff would ordinarily be given notice pursuant to 28 U.S.C.§ 636(b)(1) that he has fourteen days to file written objections to this Report and Recommendation. Because plaintiff has not advised the Clerk of his current address, the matter can be disposed of at this time. If petitioner contacts the Clerk, the Clerk shall provide petitioner with a copy of this Report and Recommendation. DATE: 11 August 2020
/s/_________
Keith A. Pesto,
United States Magistrate Judge