Opinion
3:20-cv-103-SLH-KAP
01-18-2023
ROBERT WINTON, Plaintiff, v. UNIT MANAGER DARREN GINTER, et al. Defendants
REPORT AND RECOMMENDATION RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
I recommend that the second amended complaint be dismissed without prejudice for failure to prosecute if plaintiff does not file a pretrial statement within fourteen days.
Report
This civil matter subject to the Prison Litigation Reform Act began in mid-2020, with substantial evidence to show the litigation was being directed by Zachary Spada, a frequent filer of complaints in this court and at that time plaintiff's fellow inmate. By March 13, 2022, the second amended complaint had been served on the remaining defendants and I issued a scheduling order directing, inter alia, that if no summary judgment motions were filed by August 31, 2022, plaintiff's pretrial statement was to be filed on or before September 30, 2022. ECF no. 49. No summary judgment motions were filed by the deadline, thus making September 30, 2022 the due date for plaintiff's pretrial statement. More than three months later, plaintiff has not filed a pretrial statement.
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984), the Third Circuit set forth six factors to consider in recommending dismissal of a case as a sanction for failure to prosecute: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary; (3) any history of delay; (4) whether the conduct of the party or attorney at fault was willful or in bad faith; (5) the effectiveness of alternative sanctions; and (6) the merit of the claim or defense. Weighing the Poulis factors, I conclude that dismissal of the complaint without prejudice is the appropriate sanction. It is not necessary that all the Poulis factors weigh in favor of dismissal. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988). The sanction for failure to prosecute must balance the Court's need to control its own docket against the goal of disposing of litigation on its merits, see In re Asbestos Products Liability Litigation (No. VI), 718 F.3d 236, 246 (3d Cir.2013), recognizing that in the absence of “substantial” reasons to the contrary, cases should be decided on the merits. Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019).
Although as I said there is substantial evidence that the litigation was being conducted by Zachary Spada, see also Winton v. Adams, Case no. 3:20-cv-i479-RDM (M.D.Pa.), plaintiff is proceeding pro se and is therefore solely responsible for any lack of action on his part. It is unlikely that any identifiable prejudice results from the latest three month incremental delay, but in general the possibility of prejudice increases as time goes on. Alternative sanctions such as monetary penalties are inappropriate with indigent plaintiffs. The merits of any claim by any plaintiff against any defendant are impossible to appraise on the pleadings alone: the logical place to examine the strength of a case is the pretrial statement, and the problem here is the lack of plaintiff's. It is not possible to decide whether the plaintiff's delinquency is willful, or whether he has simply concentrated on his Middle District obligations to the neglect of this case, but most likely without someone besides plaintiff pushing the litigation plaintiff has reduced his attention to it. This matter should be dismissed if plaintiff does not file the pretrial statement within fourteen days of the filing of this Report and Recommendation.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).
Notice by ECF to counsel of record and by U.S. Mail to:
Robert Winton NP-5906
S.C.I. Mahanoy