Opinion
Civil Action No. 17-17
07-18-2018
JEROME CARLTON WOODS Plaintiff, v. MS. MAUREEN MALANOSKI, et al., Defendants.
District Judge Arthur J. Schwab
ECF No. 43 REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that Partial Motion to Dismiss filed at ECF No. 43 be granted for Plaintiff's failure to prosecute because he failed to comply with the Court's Orders dated March 28, 2018 (ECF No. 14) and June 13, 2018 (ECF No. 49), which required Plaintiff to file a Response to Defendants' Partial Motion to Dismiss.
II. REPORT
Plaintiff initiated this action by Motion for Leave to Proceed in forma pauperis that was filed on March 2, 2017. (ECF No. 3). That Motion was granted (ECF No. 4) and his Complaint was docketed on March 3, 2018 (ECF No. 5). Defendants were served and a Partial Motion to Dismiss was filed on February 27, 2018. (ECF No. 43). Plaintiff was ordered to file a response by March 23, 2018 (ECF No. 45). On March 28, 2018, this Court entered an Order to Show Cause why this case should not be dismissed for Plaintiff's failure to prosecute insofar as he failed to comply with this Court's Order to file a Response to the Partial Motion to Dismiss. (ECF No. 47.) On April 12, 2018, Plaintiff filed a document entitled "FILED BRIEF IN RESPONSE TO THE DEFENDANTS MOTION TO DISMISS" (ECF No. 48). In response the Court entered the following Order:
ORDER re 48 Brief in Opposition to Motion filed by JEROME CARLTON WOODS. A Motion to Dismiss was filed on 2/27/18. Plaintiff was ordered to file a response by 3/23/17. Nothing was filed so the Court entered a Show Cause Order asking why the case should not be dismissed for failure to prosecute. This Order was entered on 3/28/18. On 4/12/18 Plaintiff responded, saying that he filed a response while he was still incarcerated at the Allegheny County Jail. He alleges that his response must have been destroyed by the defendants and not mailed. He avers that he has a mailing postage receipt but does not provide a copy. The case will not be dismissed at this time. However, the fact remains that the Court has still not received a Response to the Motion to Dismiss. Plaintiff is Ordered to file a Response no later than July 16, 2018. Failure to file said Response will result in a recommendation to the district judge that the case be dismissed. Signed by Magistrate Judge Lisa Pupo Lenihan on 6/13/18.(ECF No. 49).
A district court has inherent power to dismiss an action, sua sponte, under Federal Rule of Civil Procedure 41(b) for a plaintiff's failure to comply with an order of court. Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) ("The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b)."); Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). Therefore, the undersigned believes the court also has the power to grant a pending motion, dismissing some of the defendants but not the entire matter, on the same basis. Furthermore, a court's decision to dismiss for failure to prosecute is committed to the court's sound discretion. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 230 (3d Cir. 1998) ("We review for abuse of discretion a district court's dismissal for failure to prosecute pursuant to Rule 41(b)."), abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007). In exercising that discretion, a district court should, to the extent applicable, consider the six factors identified in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 868 (3d Cir. 1984), when it levies the sanction of dismissal of an action for failure to obey discovery schedules, failure to prosecute, or to comply with other procedural rules. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995).
In Poulis, the Third Circuit Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper:
(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. at 868 (emphasis omitted). These factors must be balanced in determining whether dismissal is an appropriate sanction, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Consideration of these factors follows.
1. The extent of the party's personal responsibility.
Plaintiff is proceeding in this matter pro se. The responsibility for his failure to file a Response to the Partial Motion to Dismiss is his alone.
2. Prejudice to the adversary.
In Poulis, prejudice was found to exist where the adversary was required to prepare and file motions to compel answers to interrogatories. In this case, Defendants have filed a Partial Motion to Dismiss arguing that Plaintiff has not alleged personal involvement as to 11 of the 18 named Defendants in the alleged wrongdoings. Plaintiff has not amended his complaint, nor has he filed a Response. In the document he did file, he indicated that his response had been placed in outgoing mail at the Allegheny County Jail. The Court allowed Plaintiff an additional 2 months to refile the brief. Nothing has been received. The Defendants filing the motion are prejudiced in that they are being asked to defend a case in which they do not know the facts of their involvement in the alleged wrongdoing.
3. A history of dilatoriness.
Plaintiff does have a history of dilatoriness as he has now been given two chances to file his Response and he has not done so. He filed his initial Complaint without a filing fee or a motion to proceed in forma pauperis. On October 30, 2017, an Order to Show Cause was entered because Plaintiff failed to file an Amended Complaint as directed by court order. (ECF No. 27).
4. Whether the party's conduct was willful or in bad faith.
There is no indication on this record that Plaintiff's failure to comply with the Court's Order was the result of any excusable neglect. He alleges that he thought his original Response brief had been mailed but when told by the Court that it was not received, and given additional time to file, he did not do so. Thus, the Court concludes that his failure is willful.
5. Alternative sanctions.
Plaintiff is proceeding in forma pauperis so it is likely that any sanction imposing costs or fees upon him would be ineffective.
6. Meritorious of the claim or defense.
Plaintiff alleges that he had been trying to get information about his Parole Board hearing and the corrections officer defendants were ignoring his requests. Because of his repeated requests, he was moved to a cell on the 4th tier, alleged to be a retaliatory action. He alleges that he is a bottom tier, bottom bunk inmate due to disabilities. He alleges that he feared for his life as inmates in higher tiers are known for assaults. His cell was illegally searched and his property scattered, he was given a retaliatory falsified misconduct, he was sexually harassed by a defendant and is being held beyond his maximum date.
Because Plaintiff's failure to prosecute relates only a partial motion to dismiss, the Court will focus on that motion. It is true that there are no non-conclusory allegations of personal involvement on the part of the moving defendants. Plaintiff's claims against the hearing examiner are likely to fail as Plaintiff has no liberty interest that would be violated by the move to restricted housing. Therefore, this factor weighs in favor of a grant of the Partial Motion to Dismiss on the basis of failure to prosecute.
The Court concludes that the majority of the Poulis factors weigh in favor of a grant of the Partial Motion to Dismiss on the basis of failure to prosecute.
Accordingly, it is respectfully recommended that the Motion at ECF No. 43 be granted.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that Partial Motion to Dismiss filed at ECF No. 43 be granted for Plaintiff's failure to prosecute because he failed to comply with the Court's Orders dated March 28, 2018 (ECF No. 14) and June 13, 2018 (ECF No. 49), which required Plaintiff to file a Response to Defendants' Partial Motion to Dismiss.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.
Dated: July 18, 2018
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge cc: JEROME CARLTON WOODS
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