TORRES et al v. GIROUX et al

Filing 40

ORDER adopting in part Report and Recommendation re 19 Report and Recommendation as to Plaintiffs Alvarez and Edwards. Plaintiffs Alvarez and Edwards are DISMISSED from the case. The Court declines to adopt the Report and Recommendation as to Pl aintiff Martin. Plaintiff Martin is instructed to file a motion to proceed in forma pauperis with the institutional account statement or pay the filing fee on or before May 4, 2016. FAILURE TO DO SO WILL RESULT IN DISMISSAL FROM THIS CASE. Signed by Judge Barbara Rothstein on 4/4/16. (sdp)

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UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA

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JOSE TORRES, ET AL.,

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Plaintiffs,
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V.
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NANCY GIROUX, ET AL.,
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Defendants.
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CASE NO.

1:15-cv-00174-BR-SPB

ORDER REGARDING
REPORT AND
RECOMMENDATION

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I. INTRODUCTION

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Pursuant to Local Civil Rule 72, Magistrate Judge Susan Baxter filed a Report and

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Recommendation on October 16, 2015 [Dkt. No. 19]. She recommended that this Court dismiss

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Raymond Gourgue, Albaro Alvarez, James Edwards, and Sibney Martin as Plaintiffs in this case

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for failure to prosecute. Sibney Martin filed an Objection to the Report and Recommendation on

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November 2, 2015. Dkt. No. 30. On March 17, 2016, Plaintiff Gourgue voluntarily withdrew

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from the case. Dkt. No. 38. Having reviewed the Report and Recommendation, Plaintiff Martin’s

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Objection, and the underlying record, the Court will ADOPT the Report and Recommendation as

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to Plaintiffs Alvarez and Edwards and DECLINE to adopt the Report and Recommendation as to

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Plaintiff Martin. The reasoning for this Court’s decision is set forth below.

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II. BACKGROUND
Plaintiffs Jose Torres, Raymond Gourgue, Albaro Alvarez, Michael Pernell, Shawarrde
Fitzgerald, James Edwards, Jhen Scutella, and Sibney Martin filed a civil rights complaint on
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July 17, 2015. Dkt No. 1. With the Complaint, only Plaintiff Torres filed a motion to proceed in

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forma pauperis. Consequently, Judge Baxter issued a Show Cause Order directing the other

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Plaintiffs to either pay the filing fee or file a motion to proceed in forma pauperis, on or before

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September 15, 2015. Dkt. No. 3 at 1. At the time of filing the Report and Recommendation, only

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Plaintiffs Pernell, Fitzgerald, and Scutella responded to the Show Cause Order. Dkt. No. 13; Dkt.

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No. 14; Dkt. No. 15. The other four remaining Plaintiffs, Gourgue, Alvarez, Edwards, and

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Martin, failed to comply with the Show Cause Order.

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Using the balancing test outlined in Poulis v. State Farm Fire and Casualty Co., 747 F.2d

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863 (3d Cir. 1984), Judge Baxter recommended Plaintiffs Gourgue, Alvarez, Edwards, and

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Martin be dismissed from the case for a failure to comply with the Court’s Show Cause Order.

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Dkt. No. 19 at 2. After Judge Baxter issued the Report and Recommendation, acting on his own

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behalf, and ostensibly acting on behalf of Gourgue, Alvarez, and Edwards, Plaintiff Martin

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objected to the Report and Recommendation. Dkt. No. 30 at 2. In the Objection, Martin alleges

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that the Plaintiffs are separated from one another and are unable to communicate concerning the

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details of their case. Dkt. No. 30 at 1. He also addresses correspondence he received from the

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Clerk of Court dated September 22, 2015. Martin did not, however, explain why he failed to

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respond to the Show Cause Order. In addition, as noted above, on March 17, 2016, Plaintiff

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Gourgue voluntarily withdrew from the case. Dkt. No. 38.

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III. DISCUSSION

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The Federal Rules of Civil Procedure authorize the referral of dispositive motions to a

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Magistrate Judge for a report and recommendation. When a party files written objections to any

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part of the Recommendation, the Court considers de novo those portions of the Recommendation
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to which objections have been made, and “may accept, reject, or modify the recommended

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decision[.]” Fed. R. Civ. P. 72(b).

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A district court may dismiss a case sua sponte, but should do so with caution. See Briscoe

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v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008) (citing Donnelly v. Johns-Manville Sales Corp., 677

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F.2d 339, 341 (3d Cir. 1982)). When determining whether or not to dismiss, a court is required to

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use a six-factor balancing test. Poulis, 747 F.2d at 868. The court must consider:

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(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."

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Briscoe, 538 F.3d at 258 (quoting Poulis, 747 F.2d at 868 (emphasis in original)). With these

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factors in mind, the Court will provide Plaintiff Martin with one final opportunity to comply with

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the Show Cause Order. In arriving at this conclusion the Court focused on the first and fourth

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Poulis factors.

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A.

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The extent of the party’s personal responsibility

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The Third Circuit has routinely held a pro se plaintiff “responsible for his failure to

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attend a pretrial conference or otherwise comply with a court’s orders.” See generally Briscoe,

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538 F.3d at 258 (referencing Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002)).

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However, if the record is insufficient to support a finding that the plaintiff was personally

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responsible for failing to comply with the orders of the court, the court should provide the

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plaintiff an opportunity to explain his failure, “thus gathering a full understanding of the facts.”

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Briscoe, 538 F.3d at 259.
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Here, Martin alleges that, due to their current incarceration status, the Plaintiffs are

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unable to communicate regarding their case. Specifically, Martin alleges that he is unable to

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communicate with Plaintiff Torres, the head Plaintiff in this case. See Dkt. No. 30 at 1. While he

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does not explicitly address his failure to comply with the Show Cause Order, the Court presumes

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that Martin is suggesting that his inability to communicate with the other Plaintiffs in this case

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has made it difficult for him to remain abreast of what he personally needs to do in order to keep

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the case moving forward or that he thought Torres’ filings would be effective on his behalf.

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Such allegations suggest that Martin’s failure to comply with the Show Cause Order was due to

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circumstances beyond his personal responsibility.

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B.

Whether the conduct of the party or the attorney was willful or in bad faith

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This factor requires the Court to consider “whether the conduct was the type of willful or

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contumacious behavior which was characterized as flagrant bad faith.” Id. at 262 (quoting Adams

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v. Trs. of the N.J. Brewery Emps.’ Pension Trust Fund, 29 F.3d 863, 875 (3d Cir. 1994) (internal

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quotation marks omitted)). Willful conduct involves “intentional or self-serving behavior.” Id.

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Negligent or inadvertent conduct is not considered contumacious. Briscoe, 538 F.3d at 262.

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The record does not indicate that Martin’s conduct was “willful” or done

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“contumaciously.” In fact, while Martin suggests that his successful prosecution of this case was

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impeded by his alleged inability to communicate with the other Plaintiffs, it also appears that

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Martin’s failure to comply with the Show Cause Order was due to his misunderstanding the

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Order. In his Objection to the Report and Recommendation, not once does Martin comment on

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the Show Cause Order. Rather, it appears, he believes that Judge Baxter recommended his

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dismissal from the lawsuit because he failed to submit a form from the Clerk of Court in which
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he was supposed to indicate whether he consented to having the case proceed before a Magistrate

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Judge. Presumably in an effort to correct his noncompliance, Martin submitted this signed form

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with his Objection. See Dkt. No. 29.

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C.

Remaining Plaintiffs

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In the conclusion section of the Objection, Martin requests that the Court not dismiss

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himself “and the other Plaintiffs.” Dkt. No. 30 at 2. Presumably Martin is referring to Alvarez

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and Edwards, the remaining Plaintiffs who did not comply with the Show Cause Order. These

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Plaintiffs did not, on their own, file any objections to the Report and Recommendation. In

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addition, nearly six months have passed since the Report and Recommendation was issued and

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Alvarez and Edward still have not sought to proceed in forma pauperis or pay the requisite

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filing. Accordingly, they will be dismissed from the case.

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IV. CONCLUSION
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Based on the foregoing reasons, the Court adopts the Report and Recommendation as to
Plaintiffs Alvarez and Edwards. Plaintiffs Alvarez and Edwards are hereby DISMISSED from

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this case. The Court declines to adopt the Report and Recommendation as to Plaintiff Martin.

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Plaintiff Martin is instructed to file a motion to proceed in forma pauperis with the

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accompanying institutional account statement or pay the requisite filing fee on or before

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May 4, 2016. FAILURE TO DO SO WILL RESULT IN DISMISSAL FROM THIS CASE.

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IT IS SO ORDERED.

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DATED this 4th day of April, 2016.

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A

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Barbara
Jacobs
Rothstein
U.S. District Court Judge

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