Opinion
Civil Action 20-cv-01639
11-15-2021
ANDREW JOHN WAHOLEK, Plaintiff, v. MELINDA L. ADAMS, Superintendent, and RAY C. SNYDER, N.W. - 1, Defendants.
THE HONORABLE ROBERT J. COLVILLE, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfolly recommended that the Complaint filed in the above-captioned case, ECF No. 16, be dismissed for failure to prosecute.
II. REPORT
Andrew John Waholek ("Waholek") brings this prisoner civil rights action pro se pursuant to 42 U.S.C. § 1983, and seeks compensatory and injunctive relief for the alleged violation of his rights during his incarceration at the State Correctional Institution at Mercer ("SCI - Mercer") through the denial of a daily calorie-sufficient hot kosher meal, two milks per meal instead of one per meal, and an advance copy of each month's kosher menu. ECF No. 16. He names as defendants Melinda L. Adams, SCI-Mercer's Superintendent, and Ray C. Snyder, SCI-Mercer's Food Service Manager (collectively, the "DOC Defendants"). Waholek alleges that the DOC Defendants violated his right to the free exercise of religion under the First Amendment and that he has been denied fair and equal treatment because SCI - Mercer does not provide a daily hot kosher meal with sufficient calories. ECF No. 1-1.
On June 4, 2021, the DOC Defendants filed a Motion to Dismiss for Failure to State a Claim. ECF No. 30. Plaintiff was ordered to file his response to the Motion to Dismiss by July 2, 2021. ECF No. 32. Plaintiff failed to respond. On July 12, 2021, the Court entered an Order to Show Cause why this case should not be dismissed due to Plaintiff's failure to file his response as ordered. ECF No. 38. On July 30, 2021, Plaintiff filed a Motion to Continue the Order to Show Cause stating he had not received a copy of the Motion to Dismiss. ECF No. 39. The Court construed Plaintiff's Motion to Continue as a motion to extend the deadline to file his response to the pending motion and, finding good cause for an extension, ordered Plaintiff to file his response by August 31, 2021. ECF No. 40. The Clerk of Court was directed to provide a copy of the Motion to Dismiss and the brief in support to Plaintiff Id. On September 2, 2021, Plaintiff filed a second Motion to Continue due to his mother's illness. ECF No. 41. Plaintiff stated that if he was not granted a continuance, he would "promptly" file an appeal, and that he "commits to have a response to the defendants (sic) motion within 30 day of this motion for a continuance." Id.
The Court granted a second continuance until October 15, 2021, and advised Plaintiff that no further extensions would be granted and that the failure to timely respond to the pending Motion to Dismiss "shall result in the dismissal of this action." ECF No. 42. As of this date, Plaintiff has not filed a response in opposition to the Motion to Dismiss.
The United States Court of Appeals for the Third Circuit has identified a six-factor balancing test to guide a court in determining whether a case should be dismissed for failure to prosecute. Paulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 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 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. 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), and not all of the six factors need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Rather, the court must "properly consider and balance" each of the six factors based on the record. See Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868).
"Dismissal with prejudice is an 'extreme' sanction" that should be employed as a "last, not first, resort." Hildebrand, 923 F.3d at 132 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). A close case should "be resolved in favor ofreaching a decision on the merits." Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, "[dismissal is a sanction rightfully in the district courts' toolbox," and the Third Circuit "has not hesitated to affirm the district court's imposition of sanctions, including dismissals in appropriate cases." Id. (citing Poulis, 747 F.2d at 867 n. 1).
The first Poulis factor requires the court to consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams, 29 F.3d at 873 ("[I]n determining whether dismissal is appropriate, we look to whether the party beats personal responsibility for the action or inaction which led to the dismissal."). Despite Plaintiffs receipt of a scheduling order requiring him to file a response to the Motion to Dismiss, and this Court's issuance of an Order to Show Cause, and two orders continuing the deadline related thereto, Plaintiff has failed to comply or provide just cause for his failure to do so. Because Plaintiff is proceeding prose, he is solely responsible for his own conduct, including his failure to respond to orders from the Court. See, eg., Colon v. Kames, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012) ("Plaintiff is proceeding prose, and thus is responsible for his own actions."). This factor weighs heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[, ] the excessive and possibly irremediable burdens or costs imposed on the opposing party," Adams, 29 F.3d at 874, and "the burden imposed by impeding a paarty's ability to prepare effectively a full and complete trial strategy." Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). Here, other than the expense of filing a motion seeking dismissal of the case, there appears to be no specific prejudice to Defendants other than general delay. However, the Plaintiffs "continued failure to communicate with the Court and continued inaction frustrates and delays resolution of this action." See Mack v. United States, 2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019) ("[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case.").
The third Poulis factor also weighs in favor of dismissal. Plaintiffs repeated failure to adhere to this Court's scheduling orders is sufficient to establish a history of dilatoriness.
With respect to the fourth Poulis factor, "[w]illfulness involves intentional or self-serving behavior." Adams, 29 F.3d at 874. In this case, there is nothing on the docket to suggest that Plaintiff is not currently receiving the Court's orders, and his failure to comply with the Court's orders therefore appears willful.
The fifth factor address the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that monetary sanctions are ineffective where the plaintiff is indigent. See, e.g.. Brennan v. Clouse, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) ("Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.") (citing Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002)). Moreover, alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court. Mack, 2019 WL 1302626, at *2 (noting that the court was "incapable of imposing a lesser sanction" on a plaintiff who refused to participate in his own lawsuit). As such, this factor weighs heavily in favor of dismissal.
Finally, the Court must consider the potential merit of Plaintiffs claims. In light of the absence of evidence of record, this factor weighs neither against nor in favor of dismissal. Nevertheless, "[n]ot all of these factors need be met for a district court to find dismissal is warranted." Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
On balance, the Court concludes that at least five of the six Poulis factors support dismissal, with the remaining factor (meritoriousness of claim) not weighed against nor in favor of dismissal. While the Court is mindful of the strong policy in favor of deciding cases on the merits, such a resolution is impossible where the plaintiff declines to participate in his own lawsuit. Consequently, the Court concludes that on the record presented here, the extreme sanction of dismissal is supported by the Poulis factors.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Plaintiffs failure to prosecute.
In accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(B) & (C), and Local Rule 72.D.2, Plaintiff is permitted to file written objections and responses thereto 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 constitute a waiver of any appellate rights. Siers v. Morrash, 700 F.3d 113, 116 (3d Cir. 1983). See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.