Opinion
Civil Action 2:20-cv-1929
05-20-2022
EARL THURMAN, Plaintiff, v. MICHAEL ZAKEN, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that this action be dismissed due to Plaintiff's failure to prosecute.
II. Report
A. Procedural History
Plaintiff Earl Thurman (“Thurman”) initiated this action on December 11, 2020, while he was housed at the State Correctional Institution (SCI) at Greene. The Court administratively closed his case because Thurman failed to submit his 6-month prison account statement and service documents for each defendant named in the case. The case was later reopened on January 5, 2021, and Thurman's Complaint was docketed (ECF No. 10).
After service was effected, Defendants Michael Zaken and Mr. Buzas (“Defendants”) filed a motion to dismiss on June 14, 2021 (ECF No. 24). Thurman filed a response in opposition on July 2, 2021 (ECF No. 30). A Report and Recommendation was issued on January 28, 2022, that recommended granting the motion to dismiss with prejudice as to Thurman's Fourteenth Amendment claim and certain aspects of his Eighth Amendment claim and without prejudice and with leave to amend as to the remainder of his Eighth Amendment claim and his First Amendment claim. (ECF No. 35). On March 1, 2022, the Court adopted the Report and Recommendation as the Opinion of the Court and ordered Thurman to file an amended complaint by April 1, 2022. He did not comply with the Court's order by filing an amended complaint by this deadline nor did he request an extension of time to do so or otherwise communicate with the Court.
Subsequently the Court received information that Thurman may have been transferred from SCI-Greene to SCI-Dallas but had not updated his address as required. Thus, while the March 1, 2022, Order that was mailed to SCI Greene was not returned as undeliverable, the Court issued an order in which it indicated that it would mail another copy of the March 1, 2022 Order to Thurman at both institutions and also directed Thurman to file an amended complaint by May 9, 2022, or otherwise show cause why this case should not be dismissed for failure to prosecute (ECF No. 37). The Court also reminded Thurman that he is under a continuing obligation to notify the Court of any change of address.
While Thurman subsequently filed Notice of Change of Address on April 25, 2022, he has failed to file an amended complaint, request an extension of time to do so, or otherwise communicate with the Court. Thus, there is every indication that Thurman has abandoned the prosecution of this case.
B. Discusssion
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim, and under this Rule, a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order. See, e.g., Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994). In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper under Rule 41(b):
(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.Id. at 868 (emphasis omitted).
There is no “magic formula” or “mechanical calculation” to determine whether a case should be dismissed for failure to prosecute. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). None of the Poulis factors are dispositive and not all of them need to weigh in favor of dismissal before dismissal is warranted. See Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Rather, the Court must “properly consider and balance” each of the six factors based on the record. Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). It must also analyze the factors in light of the “strong policy favoring decisions on the merits.” Id.
The first, third, and fourth Poulis factors-the extent of Thurman's personal responsibility, his history of dilatoriness, and whether his conduct is willful-each weigh in favor of dismissal. Thurman is a pro se litigant and is solely responsible for his own conduct. See, e.g., Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002); Winston v. Lindsey, No. 1:09-cv-224, 2011 WL 6000991, *2 (W.D. Pa. Nov. 30, 2011); see also Quadr v. Overmyer, 642 Fed.Appx. 100, 103 (3d Cir. 2016) (the district court correctly concluded that the plaintiff's actions were willful when he would not accept mail from the court, failed to respond to a motion to dismiss, and repeatedly missed deadlines). Thurman has failed to comply with a court order directing him to file an amended complaint by the deadline set by the Court, a deadline that was extended after his initial failure to do so. Furthermore, Thurman has not otherwise communicated with the Court other than to belatedly file a notice of change of address on April 25, 2022. His compliance with the Court's change of address directive, but failure to file an amended complaint, both of which were the subject of the same order, is evidence that he is aware of this order but purposefully and willfully has chosen not to proceed with the case.
The Court notes that Thurman's original Complaint raised claims regarding the failure to transfer him from SCI-Greene to another correctional institution. Thurman has since been transferred from SCI-Greene to SCI-Dallas. This may suggest why Thurman appears to have lost interest in his lawsuit.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. “Examples of prejudice include ‘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.'” Adams, 29 F.3d at 874 (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). Although this factor does not weigh heavily in favor of dismissal at this time, it is not neutral either. Thurman's refusal to comply with court orders and his failure to communicate with the Court frustrates and delays resolution of his claims against the defendants. See Mack v. United States, No. 3:17-cv-1982, 2019 WL 1302626, *1 (M.D. Pa. Mar. 21, 2019) (plaintiff's continued failure to communicate with the district court and inaction “clearly prejudices the Defendants who seek a timely resolution of the case.”). Thus, the second Poulis factor weighs at least slightly in favor of dismissal.
The fifth Poulis factor requires the Court to consider the effectiveness of sanctions other than dismissal. Under the circumstances presented here, where Thurman has failed to comply with court-ordered deadlines or to otherwise communicate with the Court, and appears to have abandoned the litigation, it is unlikely that alternative sanctions would be effective. Bowie v. Perry, No. 1:19-cv-13, 2019 WL 2412488, *2 (W.D. Pa. May 13, 2019) (“alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court.”), report and recommendation adopted by, 2019 WL 2410796 (W.D. Pa. July 7, 2019). As such, this factor weighs in favor of dismissal.
When evaluating the sixth Poulis factor, the Court must consider the potential merits of Thurman's claims. Here, Thurman has asserted claims against several defendants for civil rights violations that allegedly occurred when he was refused transfer to another correctional facility. While the Court initially dismissed Thurman's Complaint for failure to state a claim on which relief may be granted, it granted leave to amend his claims. Without his submission of an amended complaint and a subsequent evaluation of his claims, it is not possible to determine at this time whether Thurman might ultimately prevail on any of his claims. Thus, this factor is neutral.
III. Conclusion
In conclusion, the Poulis factors weigh in favor of dismissal. The Court cannot properly control its docket, move this action forward, and properly protect the rights of all parties because Thurman has failed to comply with Court orders. Therefore, it is respectfully recommended that the Court dismiss this civil action with prejudice for failure to prosecute.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, any party is allowed fourteen (14) days from the date of this Report and Recommendation to file objections. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).