Black v. Pennsylvania Baord of Probation & Parole et al

Filing 75

MEMORANDUM (Order to follow as separate docket entry)Based upon the present circumstances, dismissal of this action without prejudice for failure to prosecute is warranted under the standards announced in Azubuko and Poulis. An appropriate order will enter.Signed by Honorable Richard P. Conaboy on 10/17/16. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DOMINIC BLACK,

:
:
Plaintiff
:
:
v.
:
CIVIL NO. 3:CV-15-147
:
PENNSYLVANIA PAROLE BOARD,
:
(Judge Conaboy)
ET AL.,
:
:
Defendants
:
_________________________________________________________________
MEMORANDUM
Background
Dominic Black, an inmate presently confined at the State
Correctional Institution, Camp Hill, Pennsylvania (SCI-Camp Hill)
Filed this pro se civil rights action.

By Order dated April 24,

2015, dismissal was granted in favor of Defendant Judge Andrew
Dowling of the Dauphin County, Pennsylvania Court of Common Pleas
and service of the Complaint on the Remaining Defendants was
ordered.
Remaining Defendants are the Pennsylvania Board of
Probation and Parole, two of its officials, Lisa Moser and
Kimberly Barkley.

Black’s surviving claims alleged that the

procedures employed by the Parole Board in reviewing his
application for reparole and the calculation of his maximum term
of confinement expiration date were unconstitutional.

1

Remaining Defendants responded to the Plaintiff’s
surviving claims by filing a motion to dismiss.

By Order dated

February 26, 2016, Plaintiff’s motion requesting leave to file an
amended complaint was granted and Remaining Defendants’ motion to
dismiss (Doc. 26) was dismissed as moot.1

See Doc. 60. Black was

directed to file a single, all inclusive Amended Complaint within
twenty-one (21) days of the date of the Order, The Plaintiff was
forewarned that failure to timely submit an amended complaint or
otherwise respond to the Order would result in dismissal of his
action for failure to prosecute.

He was also provided with a

form civil rights complaint.
Discussion
A review of the docket shows that since entry of the
February 26, 2016 Order, Black has not submitted an amended
complaint to the Court.

The form complaint which was mailed to

the Plaintiff has not been returned.

Nor has Plaintiff requested

additional time in which to file an amended complaint.

Black

has also not sought reconsideration of the February 26, 2016
Order.

For reasons that are unclear, Black did file two

additional motions to amend Docs. 61 & 62), neither of which were

1

The Order determined that granting the motion was
appropriate since liberal treatment is afforded to pro se
litigants, an amended complaint was not previously filed, and based
upon Black’s contention that the purpose of his amended complaint
would include related and necessary allegations which were not
included in his Original Complaint,
2

accompanied by a proper amended complaint.2

The Plaintiff also

submitted a motion to compel discovery which was deemed withdrawn
for his failure to submit a supporting brief and an unsuccessful
motion to dismiss the Remaining Defendants’ motion to dismiss
(which had already been dismissed as moot).
If a plaintiff fails to prosecute or comply with a court
order, the court may dismiss the action, with prejudice.

See

Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d
Cir. 1984); Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.
1991) (failure of a plaintiff to comply with a court’s specific
direction to comply with a local rule which required the filing
of an opposing brief, warranted the treatment of a motion to
dismiss as being unopposed and subject to dismissal without a
merits analysis).

In a similar case, the Court of Appeals for

the Third Circuit recognized that a district court “has the
authority to dismiss a suit sua sponte for failure to prosecute
by virtue of its inherent powers and Federal Rule of Civil
Procedure 41(b)” when a litigant fails to comply with a court
order directing him to file an amended complaint.

See Azubuko v.

Bell National Organization, 243 Fed. Appx. 728, 729 (3d Cir.
2007).

2

Since Black was already granted leave to amend, those
motions will be dismissed as moot.
3

The Court of Appeals for the Third Circuit in Poulis set
forth six (6) factors which must be considered in determining
whether to dismiss an action with prejudice for failure to
prosecute:

(1) extent of the party’s personal involvement; (2)

prejudice to the opposing party by the dilatoriness; (3) whether
a history of dilatoriness existed; (4) whether the dilatoriness
was willful and in bad faith; (5) possible effectiveness of
alternative sanctions; and (6) the merit of the claim or defense.
See Adams v. Trustees, NJ Brewery Trust Fund, 29 F.3d 863 (3d
Cir. 1994).
Adequate grounds have been established for the extreme
sanction of dismissal.3

In the present case it was Plaintiff who

requested leave to file an amended complaint allegedly because
related and necessary allegations were left out of the Original
Complaint.

Thus, based upon Black’s own representations the

surviving claims against the Remaining Defendants should not be
allowed to proceed.

Furthermore, although Black was clearly

advised that he needed to submit a single all inclusive amended
complaint regarding his surviving allegations; was been granted a
reasonable period of time to do so; and supplied with a form
civil rights complaint he has failed to make any attempt to

3

Although Azubuko, 243 Fed. Appx. at 729, recognizes a
“balancing under Poulis is unnecessary” in cases such as the
present matter where a litigant’s conduct makes adjudication of the
case impossible, other Third Circuit decisions indicate that the
Poulis analysis should be undertaken. See Hernandez v. Palakovich,
293 Fed. Appx. 890, 894 (3d Cir. 2008) (Poulis factors must be
considered before dismissing a case as a sanction for failure to
follow a court order).
4

submit a proper amended complaint as directed.

Accordingly, a

finding of dilatoriness and willful conduct is warranted.
Second, other sanctions are not a viable alternative because
based upon Black’s own representations to the Court this matter
cannot proceed without the filing of an adequate amended
complaint.
Based upon the present circumstances, dismissal of this
action without prejudice for failure to prosecute is warranted
under the standards announced in Azubuko and Poulis.4

An

appropriate order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: OCTOBER 17, 2016

4

However, if Plaintiff submits a proper proposed amended
complaint on the form complaint within fourteen (14) days of the
date of this Order, this matter will be reconsidered.
5