Opinion
1:19-cv-00065
04-29-2021
DANIEL WILKES, Plaintiff v. CRAWFORD COUNTY JAIL Defendant
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that this action be dismissed due to Plaintiffs failure to prosecute.
II. Report
Plaintiff Daniel Wilkes (Wilkes)initiated this action on March 11, 2019, by filing a Motion for Leave to Proceed in forma pauperis. ECF No. 1. On March 18, 2019, the Court issued an order dismissing this motion without prejudice because Wilkes failed to file a certified copy of his prison trust fund account statement (or institutional equivalent) for the six-month period preceding the filing of his complaint as required by 28 U.S.C. § 1915(a)(2). ECF No. 2. Wilkes filed a new Motion for Leave to Proceed in forma pauperis on September 4, 2019 [ECF No. 7] which this Court granted on September 10, 2019 [ECF No. 8], docketing his Complaint the same day. ECF No. 9. Thereafter, the Court exercised its screening obligation under 28 U.S.C § 1915(e) and, on March 6, 2020, issued an Order notifying Wilkes that the only Defendant identified in his Complaint, Crawford County Prison, is not amenable to suit in an action under 28 U.S.C. § 1983. ECF No. 17. Rather than dismiss his action, however, the Court directed Wilkes to file an amended complaint within thirty (30) days. The Court's Order identified the deficiencies of Wilkes' Complaint and informed him that his amended complaint should identify the "individual prison employees, supervisors, or municipalities responsible for" the violations of his constitutional rights and explain how each violated his rights. The Court's Order also warned that his failure to comply may result in a recommendation that his lawsuit be dismissed. Id., p. 3.
In response to the Court's Order, Wilkes filed a one-page narrative on April 7, 2020 in which he vaguely alleged that unnamed prison personnel had caused him physical injury. ECF No. 20. This "amended pleading" stated that Wilkes fell on January 26, 2014 and that "[illegible] WAS NOT TOLD ANYONE THAT I FELL AND [illegible] OFFICER HELPED ME UP, DOING IT WRONGFULLY AND HURT MY BACK. I SUFFERED MORE PAIN IN THE WAY HE HELPED ME UP, HURTING MY BACK, BEING FUNNY, USING ONE OF THE MAHYMIC (sic) MANEAUVERS HURTING MY BACK DOING THAT!" ECF No. 20 (capitalization in original). Wilkes narrative continued, "THEN THE FALL.....LATE THAT NIGHT I TOLD MEDICAL ABOUT THE FALL." Id. (capitalization in original). As relief, the narrative asked that "THE BRANCH OF SECUTITY AT CRAWFORD COUNTY JAIL BE CHASTISED FOR THE RACIAL JUDICIAL PREDJIDUCE (sic) SHOWED TOWARDS ME AND THE C.O.S MENTIONED (AS WELLAS LT. AND WARDEN) BE FIRED FROM EVER BEING ABLE TO PRESENT AN UNJUST COURT LUCE THIS DISPLAY." Id. (capitalization in original). The narrative also stated that Wilkes wanted four million dollars for his continual pain and suffering but was "WILLING TO COMPROMISE." Id. (capitalization in original).
Wilkes' narrative amended complaint did not comply with either Rule 8 of the Federal Rules of Civil Procedure or this Court's prior Order. On October 9, 2020, the Court ordered Wilkes to file a second amended complaint and again instructed him on the procedure for doing so, with reference to and explanation based on Rule 8. ECF No. 27. The Court also ordered Wilkes to submit a USM-285 form for each named defendant so that they may be served (noting that he had already provided some USM-285 forms). The Court warned that, "Failure to file an amended complaint within thirty (30) days will require the Court to dismiss the action." Id., p. 3. In the almost six months since then, the Court has not received a second amended complaint, another filing, or any letter or communication from Wilkes.
The Court of Appeals for the Third Circuit has set out a six-factor balancing test to guide a court in determining whether a case or claim should be dismissed for failure to prosecute. See 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. 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 p. 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 p. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868).
As recently emphasized by the Court of Appeals, "dismissal with prejudice is an 'extreme' sanction" that should be employed as a "last, not first, resort" Hildebrand, 2019 WL 1783540, at *3 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). Close calls should "be resolved in favor of reaching 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, the Court of Appeals "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).
Turning to the first Poulis factor, the Court must 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 bears personal responsibility for the action or inaction which led to the dismissal."). Wilkes' response to the Court's first order to file an amended complaint was non-compliant as he filed only a one-page narrative that alleged harm to him by unnamed people. ECF No. 20. He has allowed almost six months to pass since the Court's second order to file an amended complaint without complying or otherwise communicating with the Court. ECF No. 27. Because "Plaintiff is proceeding pro se," he is solely "responsible for his own actions," including his failure to respond to orders from the Court. See, e.g., Colon v. Karnes, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012). 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 party's ability to prepare effectively a full and complete trial strategy." Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). Although this factor does not weigh heavily here because no defendants have been properly served with process yet, the Court notes that Wilkes' "continued failure to communicate with the Court and continued inaction frustrates and delays resolution of this action" by preventing the one named Defendant-Crawford County Jail-and any potential defendants from receiving a timely adjudication of his claims. 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 weighs strongly in favor of dismissal because Wilkes has a history of dilatoriness. It has been almost six months since the Court ordered him to file a second amended complaint. The Court's last correspondence from him was on July 9, 2020, when it received notice that his address had changed, which the Court updated on the case docket. ECF No. 26. Despite being warned that failure to comply with orders from the Court would result in a recommendation that this matter be dismissed for failure to prosecute, Wilkes has failed to comply. See Mack, 2019 WL 1302626, at *2 ("Mack has established a history of dilatoriness through his failure to notify the Court of his whereabouts and failure to comply with Court Orders and rules.").
With respect to the fourth Poulis factor, "[w]illfulness involves intentional or self-serving behavior." Adams, 29 F.3d at 874. While it is difficult to evaluate willfulness on the limited record available, there is nothing on the docket to suggest that Wilkes is not receiving the Court's orders, nor has he offered any explanation for his repeated failures to respond. Under such circumstances, the Court must conclude that those failures are intentional, tilting this factor in favor of dismissal.
The fifth factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that alternative, 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 Wilkes' claims. A claim will be deemed meritorious "when the allegations of the pleadings, if established at trial, would support recovery by plaintiff." Poulis, 747 F.2d at 869-70. While the deficiencies in Wilkes' pleadings frustrates the Court's ability to evaluate his claims potential merit, both the original and the narrative amended complaint include no factual allegations to support a plausible inference that any of the unnamed defendants caused or participated in his initial fall at the Crawford County Prison or acted with deliberate indifference to his injury or medical needs. Accordingly, this factor also weighs in favor of dismissal.
Thus, all six Poulis factors support dismissal of Wilkes' action. While the Court is mindful of this Circuit's 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, particularly after the Court has given him repeated opportunities to do so and guidance regarding how to do so. Thus, dismissal is supported by the Poulis factors and the record in this case.
III. Conclusion
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Wilkes' failure to prosecute.
IV. Notice
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 days. Any party opposing the objections shall have fourteen days 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).