PALMER v. RUSTIN et al

Filing 47

MEMORANDUM ORDER indicating that, for reasons stated more fully within, this case is dismissed. Signed by Judge Nora Barry Fischer on 10/25/11. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARWIN PALMER,
Plaintiff,

v.
RAMON RUSTIN, et al.,
Defendants.

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Civil Action No. 10-42
Judge Fisel ler

MEMORANDUM ORDER
Darwin Palmer ("Plaintiff') brings this suit pursuant to the Civil Rights Act of 1871,
42 U.S.C. § 1983, alleging deprivations of his rights under First, Eighth, and Fourteen~h
Amendments to the Constitution of the United States, committf~d by mUltiple Defendarlts during
his incarceration at the Allegheny County Jail ("ACJ") in Pittshurgh, Pennsylvania, for a parole
(.,.

violation. Compl. (Docket No.3 at 2). Plaintiff's last known Lddress was at Renewal, Inc., in
Pittsburgh. This suit commenced with this Court's receipt of Flaintiff s complaint, without filing
fee, on January 12,2010. (Docket No.1). Leave to proceed h:forma pauperis ("IFP"') was
granted on January 13,2010. (Docket No.5).
On August 23,2011, the orders of June 21, 2011, and July 27, 2011, (Docket Nos. 45 and
46) were returned to this Court marked return to sender/unable to forward. See

Stafn~ote

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Aug. 23, 2011. Attempts to locate Plaintiff through the Penns/lvania Department of Corrections
and Renewal, Inc., have been fruitless. Early in this case, Plai rrtiff was ordered, exp1idtly, to
inform the Court of any changes to his address. See Order of I\pril12, 2010 (Docket No. 12 at
3). However, in spite of that order, Plaintiff has not filed any 10tice of change address, and his
current whereabouts are unknown.

A district court has the inherent power to dismiss, sua sf. ante, a case under Rule 41 (b) of
the Federal Rules of Civil Procedure for a plaintiffs failure to c( )mply with an order of ,;~ourt.
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 COL rt could dismiss sua sponte under
Rule 41 (b)."). The decision to dismiss for failure to prosecute i) committed to the court's sound
discretion. See Collinsgru v. Palmyra Bd. ofEduc., 161 F.3d 2~ 5,230 (3d Cir. 1998) C"We
review for abuse of discretion a district court's dismissal for fai: ure to prosecute pursuant to Rule
41 (b)."), abrogated on other grounds by Winkelman ex reI. Wilkelman v. Parma City..sch. Dist.,
550 U.S. 516 (2007). In exercising that discretion, a district co rrt should, to the extent
applicable, consider the six £'lctors known as the Poulis factors 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 Phila., 47 F.3d C 11, 1330 n.18 (3d Cir. 1995).
In Poulis v. State Farin Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Court of
Appeals for the Third Circuit set forth the following six factors to be considered: (1) tbe extent of
the party's personal responsibility; (2) the prejudice to the advc:rsary 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 attorney was willful or in bad faith; (5) the effectiveness of sanctions
other than dismissal, which entails an analysis of alternative sa nctions; and (6) the
meritoriousness of the claim or defense. Id. at 868. However, "Poulis did not provide a magic
formula whereby the decision to dismiss or not to dismiss a plaintiffs complaint becomes a
mechanical calculation easily reviewed by" the court of appea s. Mindek v. Rigatti, 964 F.2d

1 See, e.g., Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002)("In considering the
second Poults factor ..."). Poulis refers to Poulis v. State Farn Fire and Casualty Ca,~, 747 F.2d
863, 868 (3d Cir. 1984).

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1369, 1373 (3d Cir. 1992). Indeed, the Court of Appeals for the Third Circuit has recognized
that "not all of the Poulis factors need be satisfied in order to di:;miss a complaint. .see
Bedwell & Sons, Inc. v. Intll.. Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988).

c. T

Inste,~,d,

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decision must be, made in the context of the district court's extelded contact with the litigant."
Id.
Consideration of the application ofPoulis factors to the instant lawsuit is as follows:
(1) The extent of the party's personal responsibility.
Plaintiff is proceeding in this matter pro se. It was his r ~sponsibility to inform I:he Court
of any change in address. Indeed, Plaintiff was ordered explici:ly to do so on Apri12L, 2010.
(Docket No. 12 at 3). The responsibility for Plaintiffs failure 10 prosecute his case is Plaintiffs
alone.
(2) Prejudice to the adversary.
The docket indicates that Defendants have responded t< the orders of this Court in a
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timely manner. The prejudice that will be suffered by Defend, nts by allowing this case linger
for an indefinite period of time due to Plaintiffs failure to prmecute, without any mechanism for
serving motions or orders on Plaintiff, is obvious.
(3) A history of dilatoriness.
Plaintiff has not made any effort to move this case fonrard and has ignored thi,s Court's
orders. This is sufficient evidence, in this Court's view, to incicate that Plaintiff does not intend
to proceed with the claims at issue.
(4) Whether the party's conduct was willful or in bad faith.
There is no indication on this record that Plaintiffs far ure was the result of any
"excusable neglect," Poulis, supra. The conclusion that his fsilure is willful is inescapable.

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(5) Alternative sanctions.
Plaintiff is proceeding pro se and has not responded to the Court's orders. It is not clear
that any sanction other than dismissal will properly redress Plai: itiff s refusal to comply, or
prompt him to prosecute his case.

(6) Meritoriousness of Plaintiffs case.
Plaintiff's allegations against the remaining Defendants are not facially meritle~;,s.
However, it is unclear whether his claims would survive summ. try judgment. As such, this factor
weighs neither for nor against dismissal.

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In light of the foregoing, this Court concludes that the oulis factors weigh heavily in
favor of dismissal. Consequently, this case will be dismissed.

AND NOW, this

'15ft day of October, 2011,

IT IS HEREBY ORDERED that this case is DISMISSED.

/Y~~~.

:OORA:B:\RRY FI CHER
UNITED STATES DISTRICT nJDGE

cc:

DARWIN PALMER
Renewal Resident Mail
P.O. Box 295
Pittsburgh, PA 15230

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