Opinion
CIVIL 1:23-CV-00743
10-16-2023
DENNIS RICHARD STIEF, Plaintiff, v. C. MILLER, et. al., Defendants.
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
I. Introduction.
The plaintiff, Dennis Richard Stief (“Stief”), appears to have abandoned this action as evidenced by his failure to prosecute it. Accordingly, after analyzing the applicable factors, we recommend that the case be dismissed.
II. Background.
Stief commenced this action pro se by filing a complaint on May 5, 2023. Doc. 1. Stief simultaneously filed a motion for leave to proceed in forma pauperis (doc. 2) and a prisoner trust fund account statement (doc. 3). We granted Stief's motion for leave to proceed in forma pauperis and ordered the Clerk of Court to send waiver of service forms to the seven defendants: (1) C. Miller (“Miller”); (2) Sgt. McCauley; (3) Lt. Metzger; (4) Correctional Officer C. Wisor (“CO Wisor”); (5) Correctional Officer C. Baylor (“CO Baylor”); (6) Correctional Officer B. Metz (“CO Metz”); and (7) Correctional Officer M. Newpher (“CO Newpher”) (collectively “the defendants”). Docs. 1, 8.
On June 7, 2023, the defendants returned the waiver of service forms and two attorneys entered their appearances on behalf of all defendants. Docs. 12-14. On July 7, 2023, the defendants jointly filed a motion to dismiss the complaint and a brief in support thereof. Docs. 15, 16. After being ordered to do so (doc. 17), Stief filed a brief in opposition (doc. 18) to the motion to dismiss.
On August 29, 2023, the Clerk's Office sent the parties a form to inform the court whether they each consent to the jurisdiction of Magistrate Judge Schwab pursuant to 28 U.S.C. § 636(C) (“consent form”). Doc. 19. The consent form instructs the parties to return the form to the Clerk's Office within 30 days from August 29, 2023. Id. The consent form that the Clerk's Office sent to Stief was returned as undeliverable. Doc. 20. The returned envelope was marked “RTS, Released 8-3-23.” Id. It thus became clear that Stief had failed to update his address with the court. Accordingly, we issued an order requiring Stief to show cause on or before October 10, 2023, why this action should not be dismissed for failure to prosecute this action. Doc. 21. Stief has not responded to the show-cause order.
III. Discussion.
Stief has failed to prosecute this action and, in fact, it appears that he has abandoned this action. Thus, we recommend that the court dismiss this action pursuant to Fed.R.Civ.P. 41(b).
The court may dismiss an action under Fed.R.Civ.P. 41(b) if the plaintiff fails to prosecute a case or to comply with court rules or court orders. Even though dismissal is an available sanction, it is a drastic sanction that “should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). In other words, “cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019).
Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). But that discretion, while broad, is governed by the following factors, commonly referred to as the Poulis factors, which the Court must balance in deciding whether to dismiss a case:
(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.Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). “The court should consider all six factors but need not find all six to award sanctions.” United States v. Brace, 1 F.4th 137, 143 (3d Cir. 2021). And no single factor is dispositive. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). An assessment of the Poulis factors leads us to conclude that this case should be dismissed.
The first Poulis factor is the extent of the party's personal responsibility. Pro se litigants are personally responsible for failure to comply with the court's rules and orders. In this case, because Stief is proceeding pro se, he is responsible for his failure to litigate this case.
The second Poulis factor is prejudice to the adversary. 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.” Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. Ware v. Rodale Press, Ind., 322 F.3d 218, 222 (3d Cir. 2003). “[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Id. In this case, Stief's failure to litigate this case and comply with court rules and court orders frustrates and delays resolution of this action, and so, such failure to litigate can be seen to prejudice the defendants, who seek a timely resolution of the case.
The third Poulis factor is a history of dilatoriness. While “conduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness,'” Briscoe, 538 F.3d at 261, “[e]xtensive 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.” Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). A “party's problematic acts must be evaluated in light of [his] behavior over the life of the case.” Id. at 875. In this case, Stief has a history of dilatoriness. He has failed to provide the court with his updated address, and he has failed to respond to the order to show cause why this case should not be dismissed. Thus, Stief has a history of dilatoriness.
The fourth Poulis factor is whether the conduct was willful or in bad faith. “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Here, Stief failed to file a notice of change of address pursuant to Local Rule 83.18. See M.D. Pa. L.R. 83.18. And he failed to respond to the order to show cause. These failures lead to an inference that Stief have willfully abandoned this case.
The fifth Poulis factor is 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. Poulis, 747 F.2d at 868. Stief is proceeding pro se and in forma pauperis, and there is no evidence to support a reasonable inference that he would be able to pay monetary sanctions. Therefore, monetary sanctions, including attorney's fees and costs, would not be an effective sanction in this case. Moreover, Stief's failure to prosecute this action even in the face of an order to show cause leads to an inference that further orders to his would not be effective. In this case, no sanction short of dismissal would be effective.
The sixth and final Poulis factor is the meritoriousness of the claim. In this inquiry, a claim will be deemed meritorious when the allegation of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. Here, the defendants have presented several meritorious arguments that Stief's complaint fails to state a claim upon which relief can be granted. See doc. 16. And although Stief filed a brief in opposition to the motion to dismiss, it fails to address many of the defendants' arguments for dismissal. See doc. 18.
In sum, the Poulis factors weigh heavily in favor of dismissal. Because Stief has abandoned this case, we recommend that the court dismiss the case.
IV. Recommendations.
Based on the foregoing, we recommend that the court dismiss this action in accordance with Fed.R.Civ.P. 41(b).
The Parties are further placed on notice that pursuant to Local Rule 72.3:
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.