GONZALEZ v. RUSSELL et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 9/15/22. 9/16/22 ENTERED AND COPIES NOT MAILED TO PRO SE AND E-MAILED.(rf, )
Case 5:20-cv-04531-GJP Document 67 Filed 09/15/22 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MIKE DALY, et al.,
September 15, 2022
Pro se plaintiff Carlos Gonzalez 1 sued several Lehigh County Jail employees
under 42 U.S.C. § 1983, alleging Eighth Amendment violations. (Second Am. Compl.,
ECF 33.) Since his release from prison eight months ago, however, he has failed to join
multiple Court teleconferences and to participate in discovery, ignoring defense
counsel’s repeated requests and Court-ordered deadlines. Defendants filed a Motion for
Sanctions seeking dismissal of the action for failure to prosecute under Federal Rule of
Civil Procedure 41(b). (ECF 63.) The Court grants the Motion.
Defense counsel served Interrogatories and Requests for Document Production
upon Gonzalez in November of 2021. (July 21, 2022 Teleconference Tr. 2:14–16, ECF
65.) Gonzalez did not respond, so counsel wrote to him in April of 2022. (Defense
Counsel’s Letter of April 27, 2022, Defs.’ Ex. B, ECF 64-1.) Gonzalez ignored that letter
as well. (Teleconference Tr. 2:19–20.) In the interim, Gonzalez failed to join a Rule 16
Gonzalez was an inmate at the Lehigh County Jail when he filed his complaint. He was released
on January 12, 2022, and notified the Court of his change of address on January 31, 2022. (ECF 53.)
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conference, held telephonically on April 12, 2022. (Id. at 5:15–17.) In May of 2022,
counsel sent Gonzalez another letter requesting dates when he would be available to be
deposed. (Id. at 2:17–18.) Gonzalez never responded to that letter, either. (Id. at 2:19–
Nor did Gonzalez respond to the discovery requests by the June 13, 2022
deadline set in the Court’s Scheduling Order. (ECF 59.) On July 18, 2022, counsel emailed the Court requesting a conference to discuss the discovery issues.
(Teleconference Tr. 2:19–22.) The Court’s Civil Deputy spoke to Gonzalez on the phone
on July 20, 2022. (Id. at 2:25–3:5.) Gonzalez confirmed that he would be available for a
teleconference on July 21, 2022, and proposed that the call be held at 4:00 p.m. (Id. at
Gonzalez did not join the call the following day. (Id. at 3:17.) The Court’s
Deputy unsuccessfully tried to reach Gonzalez by phone about five minutes after the
call was scheduled to start. (Id. at 3:13–17.) The Court and defense counsel proceeded
with the teleconference in Gonzalez’s absence. (Id. at 3:17–19.) During the call, which
was held on the record, the Court recounted the history of Gonzalez’s litigation conduct.
(Id. at 2:9–3:24.)
After the teleconference, the Court issued an Order directing Gonzalez to
respond to defense counsel’s discovery requests by August 5, 2022. (ECF 63.) In the
Order, the Court warned Gonzalez that if he failed to comply, Defendants could seek
sanctions, including dismissal of the case for failure to prosecute. (Id.) The order was
mailed to Gonzalez. (Id.)
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At 6:00 p.m. on July 21, 2022, Gonzalez emailed the Deputy, stating that he had
missed the call because he was required to work overtime and asking to reschedule.
The Court determined that it was unnecessary to reschedule the call, and the Deputy
replied to Gonzalez’s email, telling him that the teleconference would not be
rescheduled, and attached a copy of the Court’s Order. (ECF 63.) To date, Gonzalez
has not objected to the Court’s Order or responded to the discovery requests.
Federal Rule of Civil Procedure 41(b) permits a district court to dismiss a suit for
failure to prosecute. Before imposing a sanction of dismissal, a court must balance the
factors set out in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.
1984). These factors include:
(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
analysis of alternative sanctions; and (6) the meritoriousness of the
claim or defense.”
Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008) (quoting Poulis, 747 F.2d at 868)
(emphasis omitted). Not all of the Poulis factors need to be satisfied to dismiss a case,
and no single factor is dispositive. Id. at 263.
The first factor, the party’s personal responsibility, weighs strongly in favor of
dismissal. “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.” Briscoe, 538
F.3d at 258. Gonzalez explained to the Court that he missed the July 21, 2022
teleconference—which had been scheduled for the date and time he requested—because
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he was tied up at work. But he has not offered any explanation for his repeated failure
to meet discovery deadlines and attend other conferences. And being held up at work
on the day of the conference does not excuse his failure to meet the August 5th
discovery deadline, of which the Court went to extra lengths to apprise him by mail and
The third, fourth and fifth Poulis factors also weigh in favor of dismissal. When
assessing a party’s history of dilatoriness, its “problematic acts must be evaluated in
light of its behavior over the life of the case.” Adams v. Trs. of N.J. Brewery Emps.’
Pension Tr. Fund, 29 F.3d 863, 874 (3d Cir. 1994). Gonzalez actively litigated his
claims for the first sixteen months of the case’s two-year lifespan. But in the eight
months since he was released from prison, he appears to have abandoned the case.
Since January of 2022, he has not responded to discovery requests, filed motions, or
taken any other steps to move the case forward.
With respect to the fourth factor, “[c]ourts have held where there is no indication
that a plaintiff’s failure was from excusable neglect, the conclusion that their failure is
willful is inescapable.” Rodriguez v. City of Phila., No. 20-cv-0819, 2021 WL 1175165,
at *2 (E.D. Pa. March 29, 2021) (quotation omitted) (collecting cases); see also Ware v.
Rodale Press, Inc., 322 F.3d 218, 224 (3d Cir. 2003) (finding willfulness where “[n]o
excuse ha[d] been proffered for the excessive procrastination” (first alteration in
original)). Gonzalez’s failure to meet discovery deadlines despite repeated efforts by
both the Court and opposing counsel to elicit his participation can hardly be
characterized as “excusable neglect.”
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Because Gonzalez is a pro se litigant proceeding in forma pauperis, the Court’s
ability to impose less severe sanctions than dismissal is limited. Monetary sanctions
such as fines, costs or an award of attorneys’ fees are not an option. See Briscoe, 538
F.3d at 262–63.
The second Poulis factor, prejudice to the opposing party, is neutral. Prejudice
may include “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.” Id. (quoting Adams, 29 F.3d at 874). But this factor does not
necessarily require a showing of “irremediable” harm. Id. at 259. A delay that impedes
the opposing party’s ability to prepare effectively for trial may constitute prejudice if
the impediment is sufficiently severe. Id. But the Court has no information suggesting
that Gonzalez’s delay is a source of substantial prejudice to Defendants.
Only the sixth Poulis factor, the meritoriousness of the claims, weighs against
dismissal. In determining whether a claim is meritorious, the Court applies the same
standard as it would for a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Id. at 263. The hard work here is already done: Gonzalez’s sole remaining claim
against Defendants has already survived a motion to dismiss. (Order Granting in Part
and Denying in Part Defendants’ Motion to Dismiss at 2, ECF 52.)
On balance, the Poulis factors weigh strongly in favor of dismissal, and the Court
dismisses the case accordingly for failure to prosecute.
An appropriate Order follows.
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BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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