COLLURA v. CITY OF PHILADELPHIA et al
MEMORANDUM. SIGNED BY HONORABLE JAN E. DUBOIS ON 11/14/2013. 11/14/2013 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
P/O CEDRIC WHITE, P/O JOSEPH
CORVI, and P/O DANIEL DAVIS,
November 14, 2013
This case arises out of the arrest of pro se plaintiff Jason Collura on July 22, 2010.
Presently before the Court is plaintiff’s Motion for Postponement of Non Jurisdictional Hearing
(Document No. 79, filed September 24, 2013). With respect to that Motion, after receiving
defendants’ response to the motion and plaintiff’s reply, the Court, by Order dated October 16,
2013, directed pro se plaintiff to submit medical documentation in support of his contention that
he was medically unable to appear for the September 24, 2013 hearing, which he failed to do.
For the reasons that follow, the Court denies plaintiff’s Motion and sua sponte dismisses with
prejudice plaintiff’s Second Amended Complaint pursuant to the Court’s inherent power to
dismiss actions for lack of prosecution and Federal Rule of Civil Procedure 41(b).
In July 2012, plaintiff filed a Complaint in the Philadelphia Court of Common Pleas,
asserting both federal and state claims against defendants City of Philadelphia; Police Officers
Cedric White, Joseph Corvi, and Daniel Davis; Sergeant Maria Ortiz-Rodriguez; and Allied
Barton Securities Services, LLC (Allied Barton). After removal of the case to this Court,1
defendants moved to dismiss plaintiff’s Complaint, under Federal Rule of Civil Procedure
12(b)(6), and to strike impertinent and scandalous allegations in plaintiff’s Complaint, under
Federal Rule of Civil Procedure 12(f). In doing so, defendants pointed to “numerous disparaging
and threatening statements” in plaintiff’s Complaint, including references to defendants as
“scumbag[s],” “creep[s],” “coward[s],” “filthy,” and “scum.” Defs.’ Mot. to Dismiss & to Strike
Impertinent and Scandalous Allegations at 22 (Document No. 16, filed August 24, 2012).
By Memorandum and Order dated December 20, 2012, the Court dismissed a number of
plaintiff’s claims under Rule 12(b)(6). Noting that plaintiff’s “entirely inappropriate language
and ad hominem attacks . . . . serve only to disparage the defendants and to detract from the
dignity of the Court,” the Court also dismissed the remainder of plaintiff’s Complaint without
prejudice to plaintiff’s right to file an amended complaint within thirty days.
Plaintiff responded to the Memorandum and Order with four submissions. First, plaintiff
filed a Motion for Reconsideration (Document No. 28, filed December 28, 2012), which
included a request to file an interlocutory appeal. Second, plaintiff filed a Notice to Stand on
Complaint, in which he “announc[ed] [his] intention to stand on his complaint and disavow[ed]
any intention to reinstitute the litigation.” Pl.’s Notice to Stand on Compl. at 1 (Document No.
31, January 17, 2013). Third, plaintiff filed a Motion to Stay Proceedings on the ground that
“[a]n appeal has been taken in this matter to correct all of discretion [sic] this court abused.”
Mot. to Stay Proceedings at 1 (Document No. 32, filed January 17, 2013). Fourth, plaintiff filed
a Motion for Recusal (Document No. 33, filed January 17, 2013), in which he alleged that the
Court’s Memorandum and Order dated December 20, 2012 were products of judicial bias.
On August 13, 2013, plaintiff moved to remand the case to state court. The Court denied that
Motion by Order dated August 17, 2013.
Notwithstanding his Notice to Stand on Complaint, plaintiff filed a First Amended
Complaint on January 18, 2013. In plaintiff’s First Amended Complaint, plaintiff replaced most
of the offensive language in the initial Complaint with the words “what Plaintiff said before.”
1st Am. Compl. ¶¶ 7-17, 19-23, 29, 31 (Document No. 36, filed January 18, 2013). Directly
after filing his First Amended Complaint, plaintiff filed a Motion to Stay Amended Complaint
(Document No. 37, filed January 18, 2013). On February 1, 2013, the City Defendants2 filed an
Answer to Plaintiff’s First Amended Complaint with Affirmative Defenses (Document No. 42,
filed February 1, 2013), and all defendants moved to dismiss plaintiff’s First Amended
Complaint. On February 20, 2013, plaintiff filed a Motion to Strike Affirmative Defenses in
Defendant City of Philadelphia’s Answer (Document No. 46, filed February 20, 2013).
The Court, by Memorandum and Order dated March 1, 2013, dismissed all claims in the
First Amended Complaint without prejudice to plaintiff’s right to file a second amended
complaint, citing the fact that plaintiff’s First Amended Complaint was largely unchanged in any
material way from plaintiff’s initial Complaint and consisted of a tirade and threats against
defendants. The Court also, inter alia, denied plaintiff’s Motion for Reconsideration; denied
plaintiff’s request for permission to file an interlocutory appeal; and denied as moot defendants’
motions to dismiss, Plaintiff’s Motion to Stay Amended Complaint, plaintiff’s Motion to Stay
Proceedings, and Plaintiff’s Motion to Strike Affirmative Defenses in Defendant City of
Philadelphia’s Answer. By a separate Order dated March 1, 2013, the Court also denied
plaintiff’s Motion for Recusal.
“City Defendants” collectively refers to defendants City of Philadelphia, police Officers Cedric
White, Joseph Corvi, and Daniel Davis, Sergeant Maria Ortiz-Rodriguez, and Inspector Jerrold
Bates, in their individual capacities.
On March 28, 2013, plaintiff filed a Second Amended Complaint, in which he alleged
violations of the Pennsylvania Constitution and state-law claims of false arrest, illegal
imprisonment, and intentional infliction of emotional distress. Contemporaneously, plaintiff
filed a Motion to Remand to Court of Common Pleas (Document No. 54, filed March 28, 2013).
On April 4, 2013, plaintiff filed a Response to Memorandum and Order, calling the Court’s prior
opinions “joke[s],” “disgrace[s],” and “favor[s].” Resp. to Mem. & Order at 2 (Document No.
55, filed April 4, 2013). Plaintiff stated that he would not appear for hearings in front of the
Court and if the Court failed to remand the case, “[p]laintiff w[ould] have to put it in civil
suspense.” Id. at 3. Before the Court could rule on plaintiff’s March 28, 2013 Motion to
Remand to Court of Common Pleas, plaintiff filed another Motion to Decline Supplemental
Jurisdiction, in which plaintiff called defendants “manipulators” and defense counsel “an excuse
of an attorney.” See Mot. to Decline Supp. Jurisdictionand [sic] Remand Under 28 U.S.C [sic]
1367 (c)/and [sic] Reply to Br. in Opp. to Remand at 11, 13 (Document No. 59, filed April 16,
2013) [hereinafter Mot. to Decline Supplemental Jurisdiction]. On April 18, 2013, defendants
moved to dismiss plaintiff’s Second Amended Complaint.
By Memorandum and Order dated July 31, 2013, the court issued four rulings: (1) the
Court denied Plaintiff’s Motion to Remand to Court of Common Pleas; (2) the Court denied
Plaintiff’s Motion to Decline Supplemental Jurisdiction; (3) the Court dismissed with prejudice
all claims against Allied Barton, Rosiello, and Kowalksi; and (4) the Court dismissed all claims
with prejudice against the City Defendants, except for the false-arrest and false-imprisonment
claims asserted against Police Officers Cedric White, Joseph Corvi, and Daniel Davis. Although
the Court did not dismiss plaintiff’s Second Amended Complaint in its entirety, it warned that
continued ad hominem attacks on the Court or the parties appearing before it would result in
sanctions, including dismissal of the case with prejudice. Finally, the Court ordered that plaintiff
and counsel for the remaining defendants “meet and confer and provide the Court with a Case
Management Order pursuant to Federal Rule of Civil Procedure 26(f) on or before August 30,
2013.” The Court admonished that “[f]ailure to comply with this directive will result in
consideration by the Court of the imposition of appropriate sanctions . . . , including dismissal of
the case with prejudice.”
Pursuant to this Order, defense counsel sent plaintiff correspondence on August 2, 9, and
26, 2013 “to schedule a telephonic Rule 26(f) conference at a mutually convenient time.” Letter
from Oleg V. Nudelman (Document No. 70, filed August 30, 2013). Plaintiff did not respond.
Id. Rather, on August 28, 2013, plaintiff filed a Notice of Appeal of this Court’s July 31, 2013
Order.3 Id. Later that day, plaintiff sent defense counsel an email enclosing his Notice of
Appeal. Id. In his cover email, plaintiff wrote, “As you know this stops everything. . . . As you
also know there will be no discovery on this claim . . . .” Id.
In response to plaintiff’s email, defense counsel wrote a letter to the Court, dated August
30, 2013, enclosing the parties’ correspondence and advising the Court of defense counsel’s
unsuccessful efforts to meet and confer with plaintiff. The Court thereafter scheduled a hearing
on September 24, 2013 and directed plaintiff to appear and show cause why appropriate
sanctions, including dismissal of the action with prejudice, should not be imposed by reason of
plaintiff’s failure to comply with the Court’s Order dated July 31, 2013. Plaintiff thereafter filed
a Motion to Stay Non Jurisdictional Proceedings (Document No. 73, filed September 11, 2013),
which the Court denied by Order dated September 18, 2013.
By Order dated November 5, 2013, the U.S. Court of Appeals for the Third Circuit dismissed
plaintiff’s improper interlocutory appeal for lack of jurisdiction.
Plaintiff failed to appear for the September 24, 2013 hearing. Instead, approximately one
half hour before the hearing was to commence, plaintiff filed three motions: (1) Plaintiff’s
Renewed Motion for Summary Judgment (Document No. 77, filed September 24, 2013), (2)
Renewed Motion to Stay (Document No. 78, filed September 24, 2013), and (3) Motion for
Postponement of Non Jurisdictional Hearing. In plaintiff’s Motion for Postponement of Non
Jurisdictional Hearing, he wrote:
First, the hearing is void on its face . . . , but second, nothing can be accomplished
by a hearing in such circumstances. Also, Plaintiff has developed a flesh eating
disease that is highly contagious to anyone within 35 feet, like a courtroom. It is
expected to last 3-6 months, so the bogus purported September 24th hearing
should be postponed indefinitely.
Mot. for Postponement of Non Jurisdictional Hr’g at 1.
After receiving defendants’ response to the three motions filed on September 24, 2013
and plaintiff’s reply, the Court, by Order dated October 16, 2013, denied Plaintiff’s Renewed
Motion for Summary Judgment and plaintiff’s Renewed Motion to Stay, but deferred ruling on
plaintiff’s Motion for Postponement of Non Jurisdictional Hearing. The Court ordered plaintiff
to file under seal on or before November 5, 2013, a medical report signed by a licensed physician
or duly authorized employee of an accredited hospital in support of his contention that he was
unable to appear for the medical reasons stated in his Motion for Postponement. Further, the
Court warned, “Failure to provide the required medical report on or before November 5, 2013
will result in disposition of the case based on the state of the record as of November 5, 2013.”
On October 31, 2013, plaintiff filed three additional motions: (1) a motion for
reconsideration of, inter alia, the Court’s directive that plaintiff file such medical documentation;
(2) a second motion for recusal; and (3) yet another motion demanding that the Court decline to
exercise supplemental jurisdiction and remand the case to the Court of Common Pleas. By
orders dated November 4, 2013, the Court denied all three motions. The only motion presently
before the Court is plaintiff’s Motion for Postponement of Non Jurisdictional Hearing.
III. PLAINTIFF’S MOTION FOR POSTPONEMENT
The Court first considers plaintiff’s Motion for Postponement of the September 24, 2013
hearing. In their Response in Opposition, defendants argue that plaintiff’s excuse that he
contracted a “highly contagious . . . flesh-eating disease” is not credible in light of (1) plaintiff’s
history of “obfuscat[ing] and delay[ing] proceedings by continuously filing and re-filing
frivolous motions and appeals” and (2) plaintiff’s failure to “furnish the Court with any proof
of his actual unavailability for medical reasons.” Defs.’ Resp. in Opp. to Pl.’s Renewed Mot. for
Summ. J., Renewed Mot. to Stay, and Mot. for Postponement of Show Cause Hr’g at 9-10
(Document No. 82, filed October 1, 2013).
The Court agrees with defendants’ assessment that plaintiff’s medical excuse is merely a
ruse to postpone the proceedings further,4 particularly in light of plaintiff’s failure to comply
with the Court’s Order to produce medical documentation. The only responses that the Court has
received on this issue are plaintiff’s statements that the Court “will get no note” because “this is
not grade school.” Pl.’s Mot. for Reconsideration at 1 (Document No. 91, filed October 31,
2013); see also Pl.’s Reply in Opp. to Def.’s [sic] Resp. to Summ. J., Stay, and Postpone at 5
(Document No. 86, filed October 15, 2013) (“Plaintiff was not required to file a ‘doctor’s note’
as alleged, this is not grade school and should not have to produce one in the future.”).
Plaintiff’s claim that a health condition prevented him from appearing for the September 24,
2013 hearing is particularly devoid of credibility considering that prior to the hearing, plaintiff
filed in the U.S. Court of Appeals for the Third Circuit two “emergency” motions seeking a stay
of the September 24, 2013 hearing, neither of which stated that plaintiff had a health condition
that would prevent plaintiff from appearing. Both of these motions were denied in advance of
the September 24, 2013 hearing.
A litigant may be required to provide medical verification that he or she is unable to
comply with a court’s order because of illness. See, e.g., Grogan v. Deb Shops, Inc., No. 93-cv3255, 1993 WL 465382, at *2 (E.D. Pa. Nov. 12, 1993) (granting a plaintiff “thirty (30) days
leave to supply sufficient medical evidence under oath justifying his failure to attend [courtordered] hearings,” after plaintiff “ha[d] simply made a conclusory statement concerning his
illness with no medical verification”); Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002)
(“While Emerson appears to argue that the District Court did not consider his medical problems
[before it dismissed his case], the record reflects the contrary. . . . When Emerson sought
additional stays [citing health reasons], the District Court afforded Emerson the opportunity to
submit medical documentation supporting that he was unable to proceed for medical reasons.”).
Given plaintiff’s failure to provide documentation in support of his alleged illness, the
Court must disregard plaintiff’s assertion that he was unable to appear for the September 24,
2013 hearing because he has contracted a “highly contagious . . . flesh-eating disease.” See, e.g.,
Parker v. Pennstar Bank, NBT, 436 Fed. App’x 124, 127 (3d Cir. 2011) (finding that where a
litigant has provided “excuse after excuse” for “flout[ing] . . . [a] judge’s orders,” the litigant is
no longer credible); In re Fechnay, Bankr. No. 07-14418, 2008 WL 4900136, at *4 (E.D. Pa.
Nov. 12, 2008) (finding that without the “submi[ssion] [of] an affidavit setting forth the relevant
facts,” the court must “disregard [an] unsupported assertion of mental and/or emotional
problems” as a reason for the litigant’s “disengagement in th[e litigation] process”). Although
plaintiff may disagree with the Court’s Order that he provide medical documentation in support
of his purported medical condition, or even believe the Order to be incorrect, such opinion or
belief does not excuse noncompliance. See United States v. Stine, 646 F.2d 839, 845 (3d Cir.
1981) (“If a person to whom a judge directs an order believes that order is incorrect the remedy
is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.”).5
Because the Court denies plaintiff’s Motion for Postponement of Non Jurisdictional Hearing, it
will proceed to determine whether dismissal of plaintiff’s case is warranted on the present state
of the record.
IV. PLAINTIFF’S CONDUCT WARRANTS DISMISSAL
The Court finds plaintiff’s conduct in prosecuting his case warrants dismissal. “A
District Court has the authority to dismiss a suit sua sponte for failure to prosecute by virtue of
its inherent powers and pursuant to Federal Rule of Civil Procedure 41(b).” Iseley v. Bitner, 216
F. App’x 252, 254-55 (3d Cir. 2007) (per curiam) (citing Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962)). The power to dismiss a case “is necessary in order to prevent undue delays in
the disposition of pending cases and to avoid congestion in the calendars of the District Courts.”
Link, 370 U.S. at 629-30. Because dismissal is a harsh sanction, the court must consider
“whether lesser sanctions would better serve the interests of justice.” Donnelly v. JohnsManville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). The sanction of dismissal should only
be used where plaintiff exhibits “a clear record of delay or contumacious conduct.” Id.
In determining whether to dismiss a case for failure to prosecute, a district 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 the attorney was willful or in bad faith; (5)
Although plaintiff has not suggested that filing his Motion for Reconsideration in any way
relieves him of his obligation to comply with the Court’s Order dated October 16, 2013, the
Court notes that “[m]erely filing a motion for reconsideration does not stay an impeding [sic]
deadline.” In re Republic of Ecuador, Nos. C-10-80225 MISC CRB et al., 2011 WL 736868, at
*4 (N.D. Cal. Feb. 22, 2011); see also, e.g., New Pac. Overseas Grp. (USA) Inc. v. Excal Int’l
Dev. Corp., No. 99-cv-2436, 2000 WL 377513 (S.D.N.Y. Apr. 12, 2000); United States v.
Ottman, No. 05-cr-10, 2008 WL 4371975, at *1 (M.D. Ga. Sept. 22, 2008); Burgess v. Williams,
No. 11-cv-316, 2012 WL 1268608, at *2 n.1 (N.D.N.C. April 16, 2012).
the effectiveness of sanctions other than dismissal, which entails an analysis of alternative
sanctions; and (6) the meritoriousness of the claim or defense.” Poulis v. State Farm Fire &
Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). The Court will address each factor in turn.
1. The Extent of Plaintiff’s Personal Responsibility
First, the Court must consider the extent of plaintiff’s personal responsibility for the
behavior at issue. Because plaintiff is proceeding pro se, he is fully responsible for his
misconduct. See Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008) (“As a legal
proposition, . . . a pro se plaintiff is responsible for his failure to attend a pretrial conference or
otherwise comply with a court’s orders.”). Thus, the first Poulis factor weighs in favor of
2. Prejudice to the Adversary
The second Poulis factor concerns “the prejudice to the adversary caused by the failure to
meet scheduling orders and respond to discovery.” Poulis, 747 F.3d at 868. “[P]rejudice is not
limited to ‘irremediable’ or ‘irreparable’ harm” and “includes ‘the burden imposed by impeding
a party’s ability to prepare effectively and a full and complete trial strategy.’” Briscoe, 538 F.3d
at 259 (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). “If there has been
true prejudice to a party by its adversary’s failure to file a timely or adequate pleading, discovery
response, or pretrial statement, that factor . . . bear[s] substantial weight in support of a dismissal
or default judgment.” Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984).
In this case, plaintiff’s conduct clearly has prejudiced defendants. As a direct result of
plaintiff’s behavior, defendants have incurred legal fees in seeking plaintiff’s cooperation and
compliance with court orders, responding to defendant’s frivolous motions and appeals, and
preparing for and attending the court-ordered hearing on September 24, 2013. In addition to
such costs, defendants have been prejudiced by the delay plaintiff’s actions have caused in the
case. Plaintiff filed his initial Complaint in July 2012, and now, over one year later, the parties
have yet to conduct any discovery. Further, because plaintiff has refused to comply with
numerous court orders, including the Order that he meet and confer with defendants, defendants
are unable to identify witnesses or otherwise defend themselves in this action. See Pik v.
University of Pa., No. 08-cv-5164, 2011 WL 3273068, at *5 (E.D. Pa. Aug. 1, 2011). The Court
finds that plaintiff’s dilatoriness has prejudiced defendants, and therefore the second Poulis
factor weighs in favor of dismissal.
3. A History of Dilatoriness
Next, the Court considers whether plaintiff has engaged in “extensive or repeated delay
or delinquency constitut[ing] a history of dilatoriness.” Briscoe, 538 F.3d at 260 (quoting Adams
v. Trustees of N.J. Brewery Empls.’ Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994)).
Plaintiff’s long history of dilatoriness, dating back to the initial stages of this case, is
detailed earlier in this Memorandum and need not be repeated in full. Plaintiff has attempted to
derail every stage of this litigation. Rather than focusing on the merits of his case, plaintiff
continues to file motion after motion contesting this Court’s jurisdiction, seeking recusal,
demanding remand to state court, and attempting to postpone and/or stay court proceedings,
despite that this Court and the U.S. Court of Appeals for the Third Circuit consistently have
denied his duplicative requests. Stezzi v. Citizens Bank of Pa., No. 10-cv-4333, 2013 WL
1234178, at *4 (E.D. Pa. March 27, 2013) (holding there is a history of dilatoriness warranting
dismissal where a plaintiff “seeks to avoid compliance with her obligations to cooperate with
discovery,” while “fil[ing] a number of motions directed at issues that do not bear upon the
merits of her claims, thus repeatedly delaying resolution of her claims on their merits”).
Plaintiff’s demand that this Court “indefinitely” postpone the September 24, 2013 hearing is only
his latest attempt to prevent resolution of the case. Because it could not be more evident that
“this action is manifestly not a situation in which ‘there was only one failure to comply in a
timely manner,’” the third Poulis factor weighs in favor of dismissal. Francis v. Joint Force
Headquarters Nat’l Guard, No. 05-4882, 2009 WL 777396, at *8 (D.N.J. March 19, 2009)
(quoting Poulis, 747 F.3d at 868), aff’d, 350 F. App’x 608 (3d Cir. 2009).
4. Whether Plaintiff’s Conduct Was Willful or in Bad Faith
The fourth factor that a district court “must consider [is] whether the conduct was ‘the
type of willful or contumacious behavior which [is] characterized as flagrant bad faith.’”
Briscoe, 538 F.3d at 262 (quoting Adams, 29 F.3d at 875). “Generally ‘willfulness involves
intentional or self-serving behavior.’” Id. (quoting Adams, 29 F.3d at 875). This factor is met
where “plaintiff has engaged in a litany of bad faith attacks on the Court,” such as where he or
she repeatedly has made unfounded allegations of bias and prejudice. Muhammad v. Ct. of
Common Pleas of Allegheny Cnty., Pa., No. 09-cv-1255, 2013 WL 966625, at *8 (W.D. Pa. Feb.
20, 2013), report and recommendation adopted by No. 09-cv-1255, 2013 WL 966115 (W.D. Pa.
March 12, 2013), aff’d, No. 13-cv-2009, 2013 WL 4400877 (3d Cir. Aug. 16, 2013).
Plaintiff’s failure to comply with the Court’s orders cannot be viewed as “accidental or
inadvertent but instead reflect[s] an intentional disregard for [plaintiff’s] case and the Court’s
instructions.” Stezzi, 2013 WL 1234178, at *4. Plaintiff has made it clear that he has received
and understands all of the Court’s orders, but will not comply with any directive with which he
disagrees. See, e.g., Renewed Mot. to Stay at 1-2 (“The purported discovery order was
void . . . . and no Rule 16 hearings or any type, no discovery, no connected bogus hearings due to
discovery . . . can take place.”); Pl.’s Mot. for Reconsideration at 1 (“This is . . . my case and
you won’t be deciding it because I said so. No purported discovery order was legally valid to
begin with . . . .”). Although plaintiff states that he has a “duty to disobey” what he perceives to
be “unlawful order[s],” Mot. to Decline Supplemental Jurisdiction at 12, that does not excuse his
behavior or “render h[is] recalcitrance any less willful.” Francis, 2009 WL 777396, at *8 (“That
Plaintiff’s refusal to comply with the Court’s orders is rooted in her convictions concerning the
scope of the Court’s authority or her opinions regarding the Court’s legal decisions does not
render her recalcitrance any less willful.”).
Finally, in finding that plaintiff has acted both willfully and in bad faith, the Court also
considers plaintiff’s record of ad hominem attacks upon defendants and the Court. Plaintiff has
called defendants and their counsel “slime,” “creeps,” “total, total scum of the earth,” “trash,”
“weasel[s],” “monster[s],” and “worthless incompetent wannabe sharks.” See, e.g., Resp. to
Mem. & Order at 4; Reply of Pl. to Answer of City of Philadelphia, et al. at 1, 4, 5 (Document
No. 20, filed September 12, 2012); Br. of Pl. in Opp. to City of Philadelphia’s Mot. to Dismiss
2d Amendment [sic] Compl. at 2 (Document No. 64, filed April 29, 2013). Further, plaintiff has
referred to defendants’ filings as “worthless” and “garbage.” See Reply of Pl. in Opp. to Mot. to
Dismiss of City of Philadelphia, et al. at 2, 8 (Document No. 45, filed February 20, 2013).
Equally inexcusable are plaintiff’s comments directed at the Court in nearly every one of his
filings, including his unsupported allegations of judicial bias.
In light of plaintiff’s egregious and inexcusable conduct, the Court finds there is ample
evidence to conclude that plaintiff has acted willfully and in bad faith.
5. The Effectiveness of Sanctions Other Than Dismissal
The fifth Poulis factor is the effectiveness of sanctions other than dismissal. First, the
Court notes that “where a plaintiff is proceeding pro se, . . . monetary sanctions, including
attorney’s fees ‘[are] not . . . an effective alternative’” to dismissal because the litigant “ha[s] no
attorney upon whom the District Court [may] impose the expenses for failing to comply with the
court’s orders.” Briscoe, 538 F.3d at 263 (quoting Emerson, 296 F.3d at 191).
Putting plaintiff’s pro se status aside, however, plaintiff has made it abundantly clear that
nothing short of dismissal will deter his continued misconduct. For example, plaintiff responded
to the Court’s warning that the abusive language in plaintiff’s initial Complaint was sanctionable
misconduct by stating,
[S]omehow the retards can’t figure out that Plaintiff absolutely won’t be
complying with any invalid and bogus order . . . Plaintiff is standing on his
complaint. Also Plaintiff cannot cure the defect in his complaint because there is
none, just simple and reasonable adjectives that the offenders merely disagree
Pl.’s Reply in Opp. to City’s Br. in Opp. to Pl.’s Mot. for Reconsideration at 5 (Document No.
34, filed January 17, 2013). Similarly, plaintiff has not complied with the Court’s denial of his
request for interlocutory appeals. Plaintiff has written that adverse decisions “[are] appealable
and . . . will be appealed whether anyone likes it or not. . . . Plaintiff is going to appeal every
adverse decision in this case and could care less if this drags on for eight years . . . .” Pl.’s Reply
in Opp. to Allied Barton’s Br. in Opp. to Pl.’s Mot. for Reconsideration at 1 (Document No. 38,
January 24, 2013).
Moreover, even if the Court were to sanction plaintiff in lieu of dismissal, the Court has
no reason to expect plaintiff’s compliance with any such sanction. Not only has plaintiff stated
on a multitude of occasions that this Court “has no authority to do anything” and is incapable of
issuing “valid commands to adhere to,” but plaintiff has dramatically confirmed his refusal to
comply with any sanctions, even dismissal, by his statement that “no sanctions or dismissal with
prejudice [can] occur for any reason whatsoever.” Br. of Pl. in Opp. to City of Philadelphia’s
Mot. to Dismiss 2d Amendment Compl. at 1-5. When the Court warned plaintiff that he would
face sanctions for continued misconduct, plaintiff responded that the Court “ha[s] no base
jurisdiction period, let along the nerve to start ordering hearings and orders, [and] threatening
sanctions.” Mot. to Stay Non Jurisdictional Proceedings at 2 (emphasis in original). Where a
pro se plaintiff has not heeded warning after warning, the Court has no choice but to dismiss his
or her case. See, e.g., Muhammad, 2013 WL 966625, at *8 (finding that alternative sanctions
would be in vain where plaintiff “repeatedly ignored court orders, including orders notifying
[him] that failure to abide by the Order may result in the sanction of dismissing his case”). Thus,
the fifth Poulis factor also militates in favor of dismissal.
6. The Meritoriousness of the Claims
The final factor to consider is the “meritoriousness” of plaintiff’s claims and defenses,
which the Court must evaluate “on the basis of the facial validity of the pleadings, and not on
summary judgment standards.” Scarborough v. Eubanks, 747 F.2d at 875. In this case, the
Court already has determined that plaintiff has alleged sufficient facts to support his false-arrest
and illegal-imprisonment claims asserted against Police Officers Cedric White, Joseph Corvi,
and Daniel Davis. This factor therefore weighs in plaintiff’s favor. The Court finds, however,
that this single factor does not overcome the cumulative effect of the other five factors, all of
which weigh heavily in favor of dismissal. See, e.g., Muhammad, 2013 WL 966625, at *8.
The Court has weighed the above factors “in order to assure that the ‘extreme’ sanction
of dismissal or default is reserved for the instances in which it is justly merited.” Poulis, 747
F.2d at 870. This analysis leaves unescapable the Court’s conclusion that plaintiff’s clear record
of willful noncompliance with court orders warrants dismissal of plaintiff’s Second Amended
Complaint with prejudice. An appropriate order follows.
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