Opinion
Civil Action 3:23-CV-1958
07-17-2024
WILLIAM JOHN WELFEL, Plaintiff v. WILKES BARRE POLICE DRUG TASK FORCE, et al., Defendants
MUNLEY, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
William John Welfel (“Plaintiff”) initiated this civil rights lawsuit on November 28, 2023, with the lodging of his complaint. (Doc. 1). Plaintiff sues twelve parties including various state and local officials. Plaintiff's claims stem from his arrest in August 2020 and subsequent drug charge. Plaintiff pleaded guilty to one count of manufacture, delivery or possession with intent to manufacture or deliver in June 2023 and was sentenced in August of 2023. Plaintiff alleges multiple violations of his Fourth Amendment rights and attempts to bring a civil claim for entrapment. However, Plaintiff has failed to update his address with the Court since his apparent release, leaving the Court with no way to contact Plaintiff, and making the adjudication of this case impossible. For the reasons explained below it will be recommended that this case be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff's abandonment of, and failure to prosecute, this case.
Commonwealth v. William John Welfel Jr., CP-40-CR-0001941-2020, available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-40-CR-0001941-2020&dnh=3u2VRHL9256Hadu5z0hdew%3D%3D (last accessed July 12, 2024).
II. BACKGROUND AND PROCEDURAL HISTORY
A. Procedural History
Plaintiff lodged his Complaint (Doc. 1) on November 28, 2023, providing only a prison address. That same day, the Clerk's Office mailed Plaintiff a letter. That letter explained that Plaintiff has:
an affirmative obligation to keep the court informed of his or her current address. If the plaintiff changes his or her address while the lawsuit is being litigated, the plaintiff shall immediately inform the court of the change in writing.(Doc. 3). Plaintiff was also sent a standing order, which provides that “[i]f the Court is unable to communicate with the plaintiff because the plaintiff has failed to notify the court of his or her address, the plaintiff will be deemed to have abandoned the lawsuit.” (Doc. 4).
After Plaintiff was granted leave to proceed in forma pauperis, on January 8, 2024, the Court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2) and found that it failed to state a claim. (Doc. 10). Plaintiff was given leave to file an amended complaint and did so on January 19, 2024. (Doc. 12).
On February 6, 2024, the Court screened Plaintiff's Amended Complaint and found that it failed to state a claim, except Plaintiff did, at the screening stage, plead enough facts to have his false imprisonment claim against Wilkes-Barre Police Officer Defendant Conmy in his individual capacity proceed. (Doc. 13). The Court granted Plaintiff a second opportunity to amend. Id. Plaintiff did not do so.
On March 25, 2024, the Court issued an Order extending Plaintiff's time to file a second amended complaint. (Doc. 14). On April 8, 2024, the copy of that Order sent to Plaintiff by the Clerk's Office was returned as undeliverable. (Doc. 15). The envelope read “Return to Sender, Inmate Released.” Id. The Clerk's Office searched VineLink which showed Plaintiff was no longer in custody. Id. Given that Plaintiff failed to update his address, the Clerk's Office was unable to resend the Order. Id.
On May 7, 2024, out of an abundance of caution, the Court issued an Order instructing Plaintiff to provide the Court with his current address and warning Plaintiff that failure to do so would result in a recommendation to the District Court that his amended complaint be dismissed in its entirety, and may result in the dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b). (Doc. 16). On May 21, 2024, the copy of that Order sent to Plaintiff by the Clerk's Office was returned as undeliverable. (Doc. 17). The envelope read “Return to Sender, Inmate Released.” Id. The Clerk's Office again searched VineLink which showed Plaintiff was no longer in custody. Id. Given that Plaintiff failed to update his address, the Clerk's Office was unable to resend the mail. Id. As of today's date, the Pennsylvania Department of Correction's Inmate/Parolee Locator shows no results found searching for Plaintiff.
B. Allegations in the Amended Complaint
As Defendants in the Amended Complaint, Plaintiff names:
(1) Officer James Conmy (Detective, Wilkes-Barre Police Department);
(2) Confidential Informant;
(3) Assistant District Attorney Scanlon (Luzerne County);
(4) Assistant District Attorney Carroll (Luzerne County);
(5) John Doe # 1;
(6) John Doe # 2;
(7) Attorney Girard Mecadon;
(8) Attorney Janan Tallo;
(9) Attorney Allyson Kacmariski;
(10) Attorney John Pike;
(11) Counselor Fred Mazur (Work Release Counselor at Luzerne County Correctional Facility); and
(12) Judge David Lupas.(Doc. 12, pp. 1-4).
Plaintiff alleges that on August 18, 2020, at approximately 10:00 a.m., he was walking from his room at a Days Inn and exited a parking lot, headed to a McDonald's parking lot. (Doc. 12, p. 5). Plaintiff heard a shout to get down on the ground and then was immediately tackled by a “plain clothed person” and “thoroughly searched.” Id. The “police” recovered a digital scale and nine (9) unopened suboxone strips in Plaintiff's wallet. Id. While being taken to the ground Plaintiff saw the individual he was walking with, James Hughes, being detained by a “plain clothed person.” Id. “As [he] was cuffed and brought to [his] feet after search” the officer walking Plaintiff to the patrol car spotted a baggie on the ground, approximately twenty feet from where Plaintiff had been tackled. Id. The officer exclaimed “heres [sic] his drugs.” Id. Plaintiff vehemently denied these were his drugs. Id. Plaintiff was then arrested and taken to the Wilkes-Barre Police Department before being taken to Luzerne County Correctional Facility (“LCCF”). Id. The officer who arrested Plaintiff was Defendant Conmy. Id.
Due to his arrest, Plaintiff was incarcerated for nine (9) days, “beginning the grave injustice perpetrated by the various employees of the state, under the color of the law ....” (Doc. 12, p. 6). Plaintiff alleges he “pled his innocence” since his arrest to the “allegations” against him. Id. Plaintiff told all four of his court appointed attorneys that he wished to go to trial but was ignored and suffered from an allegedly extraordinary number of continuances and delays. Id.
On June 26, 2023, Plaintiff pleaded guilty “at the behest” of his attorney Defendant Pike, with a plea agreement that had no jail time. (Doc. 12, p. 6). At sentencing on August 23, 2023, Judge Lupas “breached said agreement” and sentenced Plaintiff to one to two years imprisonment. Id. Since then Plaintiff has been continuously incarcerated and will be until an unknown date. Id. Plaintiff has filed an appeal to Judge Lupas's sentencing decision and is still waiting on a decision. Id.
Plaintiff purports to assert three claims: (1) entrapment; (2) a 42 U.S.C. § 1983 Fourteenth Amendment Due Process claim for being arrested without provocation, detained against his will and having his personal property (phone and wallet) taken from him without a warrant or due process; and (3) a 42 U.S.C. § 1983 malicious prosecution claim. (Doc. 12, pp. 7, 9-11).
Plaintiff lists his injuries as:
Wrongful incarceration of 168 days as of January 14, 2024, August 23, 2023 thru [sic] January 14, 2024 and continuation, 14th Amendment violation, loss of primary residence along with all property contained within residence, loss of maint. [sic] position within said residence, pain and suffering due to unhealth living conditions while confined to LCCF along with health problems not addressed by med. [sic] staff.(Doc. 12, p. 7).
As relief Plaintiff seeks money damages for his wrongful incarceration and pain and suffering, “along with cease and desist by any/all law enforcement officials if found to have acted maliciously in violation of [his] civil rights to life, liberty and the pursuit of happiness.” (Doc. 12, p. 7).
III. FEDERAL RULE OF CIVIL PROCEDURE 41(B) LEGAL STANDARD
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute or comply with a court order, stating that: “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.” A court's authority to dismiss extends past granting a motion by the defendant. In fact, “[u]nder Rule 41(b), a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order.” “The 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 the courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”
Fed.R.Civ.P. 41(b); Price v. Williams, No. 1:08-CV-583, 2019 WL 1620287, at *3 (M.D. Pa. Apr. 16, 2019) (citing Woods v. Malinowski, No. 17-17, 2018 WL 3999660, at *1 (W.D. Pa. July 18, 2018), report and recommendation adopted as modified, 2018 WL 3997344 (W.D. Pa. Aug. 21, 2018)).
Qadr v. Overmyer, 642 Fed.Appx. 100, 102 (3d Cir. 2016) (per curium) (citing Fed.R.Civ.P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (recognizing that a court can dismiss a case sua sponte under Rule 41(b)).
Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962).
Decisions regarding dismissal of actions for failure to prosecute or comply with a court order rest in the sound discretion of the Court and will not be disturbed absent an abuse of that discretion. That discretion, while broad, is governed by the following factors, commonly referred to as Poulis factors:
Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted).
(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. (citing Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)).
“In balancing the Poulis factors, [courts] do not [employ] a . . . ‘mechanical calculation.'” Consistent with this view, it is well-settled that “no single Poulis factor is dispositive,” and that “not all of the Poulis factors need be satisfied in order to dismiss a complaint.”
Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008) (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).
Id. (internal citations and quotations omitted).
IV. DISCUSSION
As discussed above, since his apparent release, Plaintiff has not provided the Court with an updated address and two Court Orders have been returned to the Court. (Docs. 15, 17). At the beginning of this case, Plaintiff was sent a letter that informed Plaintiff of his obligation to keep his address current with the Court. (Doc. 3). Plaintiff was also sent this Court's Standing Practice Order in Pro Se Plaintiff cases which explains that, “[i]f the Court is unable to communicate with the plaintiff because the plaintiff has failed to notify the court of his or her address, the plaintiff will be deemed to have abandoned the lawsuit.” (Doc. 4). Further, this Court's Local Rule 83.18 “Appearance of Parties Not Represented by Counsel” requires that:
Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action, such party shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served upon such party.
Plaintiff is in violation of Local Rule 83.18, and has not met his responsibility to update his current address with the Court.
Ordinarily when deciding, sua sponte, to dismiss an action as a sanction, a District Court is required to consider and balance six factors enumerated in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). However, when a litigant's conduct makes adjudicating the case impossible, an analysis of the Poulis factors is unnecessary. See Iseley, 216 Fed.Appx. at 255 (citing Guyer v. Beard, 907 F.2d 1424, 1429-30 (3d Cir. 1990) and Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994)); See also Williams v. Kort, 223 Fed.Appx. 95, 103 (3d Cir. 2007).
Plaintiff's failure to provide his current address has prevented this matter from proceeding.
Acevedo v. Walter, No. CV 3:23-0889, 2023 WL 8258788, at *2 (M.D. Pa. Nov. 29, 2023).
Despite Plaintiff's failure to update his address preventing this case from moving forward, the Court will evaluate the Poulis factors as they apply to this case.
The first Poulis factor requires that the Court consider the party's personal responsibility. Plaintiff is proceeding pro se in this case. His status, however, does not excuse compliance with the Federal Rules of Civil Procedure and this Court's Local Rules, and does not excuse Plaintiff from his obligation to abide by orders of the court. The sole responsibility for meeting those obligations in this case is Plaintiff's. Plaintiff has not met his obligations by failing to update his address with the Court and rendering the Court unable to communicate with him. Accordingly, we find that the first factor weighs in favor of dismissal.
Cannon v. Moore, No. 1:19-CV-1700, 2022 WL 2932218, at *5 (M.D. Pa. June 17, 2022) (finding that a pro se litigant was responsible for failing to comply with the Court's rules and orders), report and recommendation adopted, 2022 WL 2918898 (M.D. Pa. July 25, 2022).
The second Poulis factor requires that the Court consider whether Plaintiff's conduct has resulted in any prejudice to Defendants. In this context, examples of prejudice are “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.” Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. “[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Plaintiff's failure to comply with court rules and respond to court orders frustrates and delays the resolution of this action. Moving forward, Plaintiff's failure to litigate would prejudice Defendants who would not be able to seek a timely resolution of the case where the Court and Defendants have no way of contacting Plaintiff. Accordingly, we find that the second factor weighs in favor of dismissal.
Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984).
Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. Feb. 28, 2003).
Id.
The third Poulis factor requires the Court to consider whether Plaintiff has exhibited a history of dilatoriness over the life of this case. “[C]onduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness.'”“Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders.” On the whole, Plaintiff does not have a history of dilatoriness over the life of this case. We find the third factor weighs against dismissal.
Adams, 29 F.3d at 875 (“a party's problematic acts must be evaluated in light of its behavior over the life of the case.”).
Briscoe, 538 F.3d at 261.
Adams, 29 F.3d at 874.
The fourth Poulis factor requires the Court to consider whether Plaintiff's conduct was willful or in bad faith. In this context, “[w]illfulness involves intentional or self-serving behavior.” Plaintiff has previously responded our Orders and been actively involved in litigating this case. (Docs. 6, 8, 12). Plaintiff's subsequent failure to update his address or respond to the Court in any way when he clearly knows how to contact the Court suggests his actions are a deliberate choice. Further, Plaintiff was specifically instructed he had the affirmative obligation to notify the Court of an address change and explicitly warned that if the Court is unable to communicate with him because of failure to notify of a change in address, he would be deemed to have abandoned the lawsuit. (Doc. 4). Even with this knowledge Plaintiff has failed to update his address suggesting Plaintiff's willful abandonment of this suit. Accordingly, we find that the fourth factor weighs in favor of dismissal.
Id. at 875.
The fifth Poulis factor requires the Court to consider the effectiveness of alternate sanctions. Dismissal is a sanction of last resort, and it is incumbent upon a court to explore the effectiveness of lesser sanctions before ordering dismissal. In general, “sanctions less than dismissal [are] ineffective when a litigant, such as [Plaintiff], is proceeding pro se. ” Further, Plaintiff is proceeding in forma pauperis in this case. Therefore, it is unlikely that monetary sanctions would be effective. Moreover, as the Third Circuit has found, “[t]he Court's inability to communicate with Plaintiff is solely the result of his own inaction and renders ineffective any sanction short of dismissal.” Accordingly, we find that the fifth factor weighs in favor of dismissal.
Poulis, 747 F.2d at 868.
See Lopez v. Cousins, 435 Fed.Appx. 113, 116 (3d Cir. 2011); Emerson, 296 F.3d 184; Nowland v. Lucas, No. 1:10-CV-1863, 2012 WL 10559, at *6 (M.D. Pa. Jan. 3, 2012) (“This case presents such a situation where the plaintiff's status as a pro se litigant severely limits the ability of the court to utilize lesser sanctions to ensure that this litigation progresses in an orderly fashion.”).
Acevedo, 2023 WL 8258788, at *2.
The sixth and final Poulis factor requires the Court to consider the meritoriousness of the claim. A claim is deemed “meritorious” for the purposes of the Poulis analysis when the allegations of the complaint, if established at trial, would support recovery. To evaluate this factor, a court uses the standard for a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. While review of Plaintiff's Amended Complaint reveals one claim may have proceeded past the screening stage, we do not believe consideration of this factor can save Plaintiff's claims when it appears he has willfully abandoned this lawsuit by failing to update his address. Even if we found that Plaintiff had not abandoned this lawsuit, Defendant Conmy would be unable to serve his response to Plaintiff's Amended Complaint on Plaintiff without a correct and current address. Accordingly, the Court finds this factor is neutral as to the false imprisonment claim against Defendant Conmy in his individual capacity, but weighs in favor of dismissal for all other claims.
Poulis, 747 F.3d at 870.
Briscoe, 538 F.3d at 263.
Again, “no single Poulis factor is dispositive,” and “not all of the Poulis factors need be satisfied in order to dismiss a complaint.” Upon balancing the Poulis factors as they apply to this case, the Court finds those factors weigh in favor of dismissal of this action for lack of prosecution and abandonment of this case. Therefore, it will be recommended this case be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
Briscoe, 538 F.3d at 263 (quoting Mindek, 964 F.2d at 1373).
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) This case be DISMISSED with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure;
(2) The Clerk of Court be DIRECTED to CLOSE this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.