Opinion
Civil Action No. 2: 15-cv-1646
03-22-2021
QUINTEZ TALLEY, Plaintiff, v. SGT. DAVIS, et al, Defendants.
Nora Barry Fischer United States District Judge REPORT & RECOMMENDATION Recommendation
For the following reasons, it is respectfully recommended that the Motion for Leave to Proceed in forma pauperis (ECF No. 1) filed by Plaintiff, Quintez Talley, be denied and this case be dismissed with prejudice for failure to prosecute. Report
A. Procedural History
Talley, a serial pro se prison litigator, initiated this action on December 15, 2015, by filing a motion for leave to proceed in forma pauperis, with an attached eleven-page handwritten Complaint dated November 19, 2015. ECF No. 1. At that time, Talley was incarcerated at SCI-Greene, and the events giving rise to his lawsuit occurred at SCI-Greene on October 3, 2015.
On January 7, 2016, Talley was advised that his motion was deficient as it was not accompanied by either an affidavit or a certified copy of his prison trust fund account statement as required by 28 U.S.C. § 1915(a)(1). The Court dismissed the motion without prejudice and directed the Clerk of Court to mark the case administratively closed. ECF No. 2.
On March 31, 2016, Talley filed a request to have the instant case consolidated with another of his cases that was pending at the time, Civil Action No. 16-cv-0152. ECF No. 3. The Court denied that request without prejudice on April 4, 2016, and Talley was again informed that the case remained administratively closed as his motion for leave to proceed in forma pauperis continued to be deficient. ECF No. 4.
A jury trial was commenced in that case on October 16, 2017 and the jury returned a defense verdict on October 17, 2017. Talley did not appeal this judgment.
The Court heard nothing from Talley until five years later, when on January 22, 202, he filed a motion for clarification inquiring about the status of this case. ECF No. 5. On January 25, 2021, the Court again informed Talley that the case had been administratively closed on January 7, 2016, because his motion seeking in forma pauperis status was deficient. ECF No. 6.
Approximately a month later, on February 17, 2021,Talley submitted an affidavit and addendum in support of his motion to proceed in forma pauperis as well as a certified copy of his prison trust fund account statement for the period July 2015 through December 2015. ECF Nos. 7, 8, and 9. Talley has not provided the Court with any explanation for the prolonged delay in providing these documents to the Court.
B. Discussion
1. The Prison Litigation Reform Act
As previously noted, Talley is a prolific litigator having filed lawsuits in all three federal district courts in Pennsylvania, as well as in Greene County and Centre Counties. At last count, he had filed over 50 lawsuits, and on numerous occasions Talley has filed for leave to proceed IFP. The Court takes judicial notice of the fact that Talley has had at least "three strikes" within the meaning of 28 U.S.C. § 1915(g).
The Prison Litigation Reform Act ("PLRA") limits a prisoner's ability to obtain IFP status:
In no event shall a prisoner bring a civil action . . . if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in a facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g) (emphasis added). The initial question this Court must resolve, therefore, is whether Talley is three struck under the PLRA. The answer to that question depends on when this case was "brought." If it was "brought" in 2015, Talley would not be considered three struck as he had not on three or more prior occasions had an action dismissed on the grounds that it was frivolous, malicious, or failed to state a claim. However, if the case was "brought" when he provided the requisite financial information in 2021, he would be considered three struck and would not be able to proceed unless he is under imminent danger of physical injury.
The United States Court of Appeals for the Third Circuit, as well as two other appellate courts, has considered whether a prisoner plaintiff "brings" or has "brought" a civil action under the PLRA when the complaint is signed, when the district court clerk initially receives the complaint, or when the clerk dockets the complaint after initial intake and screening. Brown v. Sage, 941 F.3d 655, 661 (3rd Cir. 2019); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004). All three appellate courts have decided that a prisoner plaintiff "brings" a civil action for purposes of the PLRA "when he tenders or submits the complaint to [a district] court, rather than when a complaint is docketed after a district court grants IFP status to a prisoner." Brown v. Sage, 941 F.3d at 662. Accordingly, following our appellate court's instructions, id., the Court finds that this case was "brought" in 2015, at which time Talley had not yet accrued three strikes.
The Court of Appeals for the Third Circuit considered the issue in the context of 28 U.S.C. § 1915(g), rejecting a three-striker prisoner's contention he never "brought" a civil action because dismissal occurred at screening and prior to docketing of the complaint. Brown, 941 F.3d at 661-62. The Court of Appeals for the Seventh and Ninth Circuits considered the issue in the context of exhaustion under § 1997e(a), holding a prisoner plaintiff must exhaust his administrative remedies before signing the complaint. Vaden, 449 F.3d at 1050; Ford, 362 F.3d at 399-400.
Although Talley has overcome the three-strike hurdle, there is another significant hurdle that Talley faces which this Court finds he is not able to overcome. As noted, after five years of unexplained inactivity, Talley now attempts to resurrect this case which he knows has been administratively closed since 2015. For the following reasons, the Court recommends that this case be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b).
The Court offers no opinion as to whether the claims in the case are barred by the statute of limitations.
"[F]ailure to prosecute under Rule 41(b) does not mean that the plaintiff must have taken any positive steps to delay the trial or prevent it from being reached by operation of the regular machinery of the court. It is quite sufficient if he does nothing, knowing that until something is done there will be no trial." Bendix Aviation Corp. v. Glass, 32 F.R.D. 375, 377 (E.D. Pa. 1962), aff'd, 314 F.2d 944 (3d Cir.) (per curiam), cert. denied, 375 U.S 817 (1963) (emphasis added).
2. Federal Rule of Civil Procedure 41(b)
Rule 41(b) states in pertinent part:
Involuntary Dismissal; Effect. 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. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as adjudication on the merits.Fed. R. Civ. P. 41(b).
A district court has the inherent power to sua sponte dismiss under Rule 41(b). Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) ("The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b)."). See also Kenney v. Cal. Tanker Co., 381 F.2d 775, 777 (3d Cir. 1967) ("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 courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.") (quoting Link 370 U.S. at 630-31).
A court's decision to dismiss for failure to prosecute is committed to the court's sound discretion. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 230 (3d Cir. 1998) ("We review for abuse of discretion a district court's dismissal for failure to prosecute pursuant to Rule 41(b)."), abrogated on other grounds by, Winkelman ex rel. Wilkelman v. Parma City School Dist., 550 U.S. 516 (2007). In exercising that discretion, a district court should, to the extent applicable, consider the six factors set out in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1994), when it levies the sanction of dismissal of an action for failure to obey discovery schedules, failure to prosecute, or to comply with other procedural rules. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995). These factors are (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, 747 F.2d at 868. Poulis does not, however, "provide a magic formula whereby the decision to dismiss or not to dismiss a plaintiff's complaint becomes a mechanical calculation easily reviewed" by the Court of Appeals for the Third Circuit. Mindek, 964 F.2d at 1373.
A great deal of deference will be given the district court which is in the best position to weigh all of the Poulis factors and any other pertinent matters. Mindek, 964 F.2d at 1373 ("the decision must be made in the context of the district court's extended contact with the litigant. Ultimately, the decision to dismiss constitutes an exercise of the district court judge's discretion and must be given great deference by this Court - a court which has had no direct contact with the litigants and whose orders, calendar, docket and authority have not been violated or disrupted."). Moreover, the Court of Appeals for the Third Circuit has recognized that "no single Poulis factor is dispositive," Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003), and "not all of the Poulis factors need be satisfied in order to dismiss a complaint." Mindek, 964 F.2d at 1373; see also Allen v. American Fed. of Gov't Emp., 317 Fed. Appx. 180, 181 (3d Cir. 2009) (district court did not abuse its discretion in dismissing complaint without explicitly weighing the Poulis factors when plaintiff failed to file an amended complaint as ordered by the court).
With the above principles as its guidepost, this Court will review the Poulis factors seriatim.
(1) The extent of the party's personal responsibility. Although proceeding pro se, Talley is a sophisticated, serial litigator. He bears sole responsibility for the failure to prosecute this action. He has offered no explanation for why he allowed the case to remain dormant for over five years. Therefore, this factor weighs in favor of dismissal.
(2) Prejudice to the adversary. "Evidence of prejudice to an adversary 'would bear substantial weight in support of a dismissal or default judgment." Adams, 29 F.3d at 873-74 (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). According to the Complaint, the events giving rise to this lawsuit occurred in October of 2015, when Talley was housed at SCI-Greene. Our court of appeals has stated that "[e]xamples of prejudice include 'the irretrievable loss of evidence, the inevitable dimming of witnesses' memories . . . ." Id. Here, the Court finds that defendants, who have had no notice of this lawsuit, would be prejudiced by the difficulty of mounting a defense so long after the events at issue. Therefore, this factor weighs in favor of dismissal.
(3) History of dilatoriness. This case was administratively closed in January 2016. Although Talley has allowed this case to remain dormant for five years, he has filed twelve cases in the Western District of Pennsylvania since January 2016. He offers no explanation why he took no action in this case over the last five years and the Court is at a loss to understand why he stopped prosecution or why he began again after so long. As our court of appeals stated in Adams, "the failure to prosecute for more than four years amounts to a history of dilatoriness. Four and one-half years is a significant and inexcusable delay, and could constitute grounds for dismissal under Rule 41(b)." Adams, 29 F.3d at 875. Here, Talley waited over five years to provide the requisite financial information. The Court finds that a five-year delay "is a significant and inexcusable delay." Id. This factor weighs in favor of dismissal.
(4) Whether the conduct of the party or the attorney was willful or in bad faith. Talley's five-year delay in providing the requisite financial information without any excuse appears to be calculated and willful. He is an experienced litigator who has applied for leave to proceed in forma pauperis on numerous occasions. Therefore, the Court finds this factor weighs in favor of dismissal.
(5) Effectiveness of sanctions other than dismissal. Until Talley's recent filings, it appeared that he had lost interest in pursuing this case. He offers no explanation for the renewed interest in pursuing it now after a five-year hiatus. This factor is weighs in favor of dismissal.
(6) Meritoriousness of the claim or defense. Relying upon the allegations of the complaint, the facial meritoriousness of Talley's claims is one factor weighing against dismissal.
In light of the foregoing, the Court finds that five of the six Poulis factors weigh in favor of dismissal. Consequently, the Court recommends that Talley's motion for leave to proceed in forma pauperis be denied and this case be dismissed with prejudice for his failure to prosecute.
Conclusion
For the reasons set out in this Report and Recommendation, it is respectfully recommended that Talley's motion for leave to proceed in forma pauperis be denied and this case be dismissed with prejudice for his failure to prosecute.
Talley is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by April 9, 2021. He is cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: March 22, 2021
Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge cc: QUINTEZ TALLEY
KT5091
SCI Fayette
50 Overlook Drive
LaBelle, PA 15450-1050
(via U.S. First Class Mail)