Opinion
Civil Action 22-177
08-01-2022
ROBERT LEE SUTTON, Jr., Plaintiff, v. JOHN D. BONGIVENGO, Defendant.
CHRISTY CRISWELL WIEGAND, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 6
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure.
II. REPORT
Plaintiff Robert Lee Sutton, Jr. (“Plaintiff”) is an inmate at the Lawrence County Jail in New Castle, Pennsylvania. This case was commenced on February 1, 2022 with the receipt of Plaintiff's civil rights Complaint without filing fee or motion for leave to proceed in forma pauperis. ECF Nos. 1 and 1-2.
On February 8, 2022, this Court issued a Deficiency Order, in which Plaintiff was directed to cure certain enumerated filing deficiencies on or before March 10, 2022. ECF No. 2. A copy of the Deficiency Order was mailed to Plaintiff at his address of record on the same date. Plaintiff responded by curing some, but not all of the identified deficiencies, see ECF Nos. 3 and 4, and on June 10, 2022, Plaintiff was ordered to show cause why this case should not be dismissed. ECF Nos. 5 and 6. A copy of the Deficiency Order was mailed to Plaintiff's address of record along with the Order to Show Cause. ECF No. 6 at 1. The deadline to respond to the Order to Show Cause was July 11, 2022. Id. As of this date, no response has been received, and Plaintiff has not otherwise addressed the outstanding filing deficiency.
A district court has the inherent power to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a plaintiff's failure to prosecute or to comply with an order of court. Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). “Under our jurisprudence, the sanction of dismissal is reserved for those cases where the plaintiff has caused delay or engaged in contumacious conduct. Even then, it is also necessary for the district court to consider whether the ends of justice would be better served by a lesser sanction.” Id.
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the United States Court of Appeals for the Third Circuit set forth six factors to be weighed when considering whether dismissal of a case as a sanction for failure to prosecute or to obey pretrial orders. They are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure; (3) a history of dilatoriness; (4) whether the conduct of the party or 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. These factors must be balanced in determining whether dismissal is an appropriate sanction, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Consideration of the factors listed above is as follows.
(1) The extent of the party's personal responsibility
Plaintiff is proceeding in this matter pro se, and is alone responsible for prosecuting this case and complying with orders of this Court. Plaintiff is solely responsible for failing to cure the identified deficiencies, as well as for failing to respond to the Order to Show Cause. ECF No. 6.
(2) Prejudice to the adversary
Leave to proceed IFP has not been granted, and Defendant has not been served the Complaint. There is no indication that Defendant has been prejudiced unfairly by Plaintiff's conduct.
(3) A history of dilatoriness
Plaintiff has refused to correct deficiencies with the motion to proceed IFP, and has not responded to the Order to Show Cause. This is sufficient evidence, in this Court's view, to indicate that Plaintiff does not intend to proceed with this case in a timely fashion.
(4) Whether the party's conduct was willful or in bad faith
There is no indication on the record that Plaintiff's conduct with respect to proceeding IFP was the result of any “excusable neglect,” Poulis, supra. The conclusion that the failure is willful is inescapable.
(5) Alternative sanctions
Plaintiff currently is proceeding pro se, and there is no indication on the record that the imposition of costs or fees would likely be an effective sanction.
(6) Meritoriousness of the case
Plaintiff's constitutional claims against Defendant - his attorney in a state court criminal matter - are barred by the state action doctrine. Parratt v. Taylor, 451 U.S. 527, 535 (1981), (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330 - 331 (1986)). See also Polk Co. v. Dodson, 454 U.S. 312, 325 (1981) (a public defender, while perhaps paid and supervised by the state, “does not act under color of state law when performing the traditional functions of counsel to a criminal defendant”); Calhoun v. Young, 288 Fed.Appx. 47, 49-50 (3d Cir. 2008) (public defender representing criminal defendant is not acting under color of state law).
Plaintiff has not pleaded a meritorious claim.
Because five of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute.
III. CONCLUSION
Based on the reasons set forth above, it respectfully is recommended that Plaintiff's Complaint be dismissed.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).