Opinion
Civil Action No. 17-132 Erie
10-12-2018
MICHAEL D. WARDELL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
District Judge Susan Paradise Baxter
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that this action be dismissed for failure to prosecute.
II. REPORT
Plaintiff Michael D. Wardell ("Plaintiff"), acting pro se, initiated this social security appeal by filing a Complaint on May 23, 2017. ECF No. 3. He filed a Supplement to the Complaint on June 15, 2018.
On July 12, 2018, Magistrate Judge Lisa Pupo Lenihan, to whom this action was then assigned, issued orders establishing deadlines for summary judgment motions (ECF No. 16) and directing each party to file a form consenting to the jurisdiction of a Magistrate Judge or electing to have a District Judge randomly assigned (ECF No. 17). The deadline for Plaintiff to file his summary judgment motion was August 13, 2018, and the deadline to file the consent form was August 2, 2018. Plaintiff did not file anything in response to either order and, indeed, has not filed anything in this action since the June 15, 2018 supplement.
On August 8, 2018, Judge Lenihan's chambers placed a phone call to Plaintiff at the phone number listed on the docket. No one answered the call, so a message was left. That message was never returned. As a result, Judge Lenihan issued an order directing Plaintiff to show cause as to why his appeal should not be dismissed for failure to prosecute on or before October 9, 2018. Plaintiff failed to respond to that order. On September 25, 2018, this case was reassigned to the undersigned for all further proceedings.
The Third Circuit has set out a six-factor balancing test to guide a court in determining whether dismissal of a case is appropriate. Poulis 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. 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).
Applying the Poulis factors to the present matter, this Court recommends the dismissal of this matter. As recounted above, Plaintiff has failed to meet court-imposed deadlines, respond to correspondence from the Court, or take any steps to prosecute this action. Plaintiff also failed to respond to the show cause order issued by Judge Lenihan. Without a summary judgment motion and a consent form from the Plaintiff, this action cannot go forward. Moreover, Plaintiff is proceeding pro se and therefore bears all of the responsibility for any failure in the prosecution of his claims. Alternative sanctions, such as monetary penalties, are inappropriate with indigent parties. Although it is possible that Plaintiff's appeal might ultimately be meritorious, the Court cannot evaluate the merits of his claim because he has declined to file a motion for summary judgment. Accordingly, this case should be dismissed due to Plaintiff's failure to prosecute.
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
United States Magistrate Judge Dated: October 12, 2018