MEMORANDUM

MALACHY E. MANNION, District Judge.

I. Background

Plaintiff, Alfonso Rizzuto, an inmate confined in Rykers Island Jail, East Elmhurst, New York, filed the above captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). The complaint names the following officers and employees of the Department of Corrections ("DOC"), the Rockview State Correctional Institution ("SCI-Rockview") and the Camp Hill State Correctional Institution ("SCI-Camp Hill"); John Wetzel, DOC Secretary; James C. Barnacle, DOC Director of Office of Professional Responsibility; John Doe, DOC Central Office Abuse Hot Line; John K. Murray, DOC Central Office Deputy Secretary; Ms. Marirosa Lama, SCI-Rockview Facility Manager; Ms. Eaton, SCI-Rockview Security Captain; Mr. Yarger, SCI-Rockview Shift Commander; Scott Pasequale, SCI-Rockview Unit Manager; Mr. Walker, SCI-Rockview Sergeant; Mr. Milhelcic, Mr. Makosky, Ms. Wales, Mr. Karichner, Mr. Spelas, and John Does, SCI-Rockview Correctional Officers; Dr. John Symons, SCI-Rockview Medical Director; Mr. Tipton, SCI-Rockview Physician Assistant; Mr. Phelps, SCI-Camp Hill Classification Counselor; and Mr. Wallance, SCI-Camp Hill Classification Supervisor. Id. Plaintiff's complaint seeks compensatory and punitive damages for allegations of failure to protect, retaliation, denial of access to courts and proper medical treatment. Id.

On October 26, 2015, a motion for summary judgment was filed on behalf of all Defendants, except Defendant Tipton. (Doc. 46). Subsequently, on November 9, 2015, Defendants filed a statement of material facts, brief in support and supporting exhibits. (Docs. 47-49).

On November 13, 2015, Plaintiff filed a motion for enlargement of time within which to file a brief in opposition to Defendants' motion for summary judgment. (Doc. 53). By Order dated November 18, 2015, Plaintiff was granted until January 15, 2016, within which to file his brief in opposition. (Doc. 54).

On December 14, 2015, Defendant Tipton filed a motion to dismiss Plaintiff's complaint (Doc. 57) and a brief in support of said motion on December 28, 2015. (Doc. 58).

By Orders dated January 7, 2016 and April 8, 2016, Plaintiff was granted until April 29, 2016, to file a brief in opposition to Defendants' motions. (Docs. 60, 69). Plaintiff was advised that failure to file a brief in opposition to Defendants' motions would result in the motions being granted without a merits analysis as unopposed. See L.R. 7.6 ("Any party opposing any motion shall file a responsive brief . . . [or] shall be deemed not to oppose such motion). Additionally, on May 5, 2016, the following remark was entered on the docket by the Clerk of Court, on behalf of Plaintiff:

The time for filing a response has now passed and Plaintiff has failed to respond. Rizzuto has not communicated with the Court on this matter since his last filing on May 9, 2016.1 Further, over five months have passed since Rizzuto's opposition to Defendants' motion for summary judgement and Defendant Tipton's motion to dismiss were due, and he has neither filed his opposition, nor requested an enlargement of time within which to do so. For the reasons set forth below, the matter will be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

II. Discussion

Under the Local Rules of this Court, the Plaintiff should be deemed to concur in Defendants' motions since he has failed to timely oppose the motions, or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the Rules of this Court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions and provides that:

Local Rule 7.6 (emphasis added).

It is now well-settled that "Local Rule 7.6 can be applied to grant a dispositive motion without analysis of the complaint's sufficiency `if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug .26, 2010). In this case the Plaintiff has not complied with the Local Rules, or this Court's orders, by filing a timely response to Defendants' motions. Therefore, these procedural defaults by the Plaintiff compel the Court to consider:

Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010).

With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are breached, "would actually violate the dual mandate which guides this Court and motivates our system of justice: `that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion'." Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.

These basic tenets of fairness apply here. In this case, the Plaintiff has failed to comply with Local Rule 7.6 by filing a timely response to Defendants' motion to dismiss and motion for summary judgment. This failure now compels us to apply the sanction called for under Rule 7.6 and deem the Plaintiff to not oppose these dispositive motions.

Federal Rule of Civil Procedure 41(b) permits a District Court to dismiss a plaintiff's case for failure to prosecute. See Fed.R.Civ.P. 41(b) ("If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it."). In so doing, the court must balance the following factors: (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." Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984.)

In exercising this discretion "there is no `magic formula' that we apply to determine whether a district court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klem, 538 F.3d 252 (3d Cir. 2008)) Therefore, "[i]n balancing the Poulis factors, [courts] do not [employ] a . . . `mechanical calculation' to determine whether a district court abused its discretion in dismissing a plaintiff's case. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)." Briscoe v. Klaus, 538 F.3d at 263. Consistent with this view, it is well-settled that "`no single Poulis factor is dispositive,' Ware, 322 F.3d at 222, [and it is] clear that `not all of the Poulis factors need be satisfied in order to dismiss a complaint.' Mindek, 964 F.2d at 1373." Briscoe v. Klaus, 538 F.3d at 263. Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002); Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007).

A. Analysis of the Poulis Factors

1. The extent of the party's personal responsibility.

A pro se plaintiff is responsible for his failure to comply with a court's orders. Emerson, 296 F.3d at 191. Plaintiff's brief in opposition to Defendants' motion for summary judgment was originally due on November 30, 2015, and his brief in opposition to Defendant Tipton's motion to dismiss was due on January 12, 2016. Plaintiff has been granted three enlargements of time, until April 29, 2016, to file briefs in opposition. (Docs. 45, 49). On May 5, 2016, per his request, the Clerk's Office placed a remark on the docket indicating that Plaintiff would be forwarding a copy of his brief in opposition to the Court. That was more than four months ago. At this point, the Court has been waiting for almost ten months for Plaintiff to move the litigation forward and can only conclude that he is personally responsible for failing to comply with Court orders.

2. The prejudice to the adversary.

The prejudice suffered by the party seeking sanctions is entitled to great weight and careful consideration. As the United States Court of Appeals for the Third Circuit has observed:

Briscoe v. Klaus, 538 F.3d at 259-60.

In this case, the Plaintiff's failure to litigate this case or comply with Court orders now wholly frustrates and delays the resolution of this action. In such instances, the Defendants are plainly prejudiced by the Plaintiff's continual inaction, and dismissal of the case clearly rests in the discretion of the trial judge. Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007) (failure to timely serve pleadings compels dismissal); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007) (failure to comply with discovery compels dismissal); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007) (failure to file amended complaint prejudices defense and compels dismissal).

3. A history of dilatoriness.

When one considers this third Poulis factor, the history of dilatoriness on the Plaintiff's part, it becomes clear that dismissal of this action is now appropriate. In this regard, it is clear that "`[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response . . . or consistent tardiness in complying with court orders.' Adams, 29 F.3d at 874." Briscoe v. Klaus, 538 F.3d at 260-61 (some citations omitted). Here, the Plaintiff has failed to timely file pleadings, and has not complied with orders of this Court. Thus, the Plaintiff's conduct displays "[e]xtensive or repeated delay or delinquency [and conduct which] constitutes a history of dilatoriness, such as consistent non-response . . . or consistent tardiness in complying with court orders." Adams, 29 F.3d at 874.

4. Was the conduct willful or in bad faith?

Under this factor, the District Court must assess whether this conduct reflects mere inadvertence or willful conduct, in that it involved "strategic," "intentional or self-serving behavior," and not mere negligence. Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 875 (3d Cir. 1994). At this juncture, when the Plaintiff has failed to comply with instructions of the Court directing the Plaintiff to take specific actions in this case, and has violated the Local Rules, the court is compelled to conclude that the Plaintiff's actions are not accidental or inadvertent but instead reflect an intentional disregard for this case and the Court's instructions.

5. Effectiveness of sanctions other than dismissal.

Cases construing Poulis agree that in a situation such as this case, where we are confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Briscoe v. Klaus, 538 F.3d 252, 262-63 (3d Cir. 2008); Emerson, 296 F.3d at 191. This case presents such a situation where the Plaintiff's status as a pro se litigant severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. In any event, by entering our prior orders, and counseling the Plaintiff on his obligations in this case, we have endeavored to use lesser sanctions, but to no avail. The Plaintiff still declines to obey Court orders, and otherwise ignores his responsibilities as a litigant. Since lesser sanctions have been tried, and have failed, only the sanction of dismissal remains available to the Court.

6. Meritoriousness of the claim.

Finally, under Poulis we are cautioned to consider one other factor, the meritoriousness of the Plaintiff's claims. In our view, however, consideration of this factor cannot save this particular Plaintiff's claims, since the Plaintiff is now wholly non-compliant with his obligations as a litigant. The Plaintiff cannot refuse to address the merits of his claims, and then assert the untested merits of these claims as grounds for denying a motion to sanction him. Furthermore, it is well-settled that "`no single Poulis factor is dispositive,' Ware, 322 F.3d at 222, [and it is] clear that `not all of the Poulis factors need be satisfied in order to dismiss a complaint.' Mindek, 964 F.2d at 1373." Briscoe v. Klaus, 538 F.3d at 263. Therefore, the untested merits of the noncompliant Plaintiff's claims, standing alone, cannot prevent imposition of sanctions.

In any event, as discussed below, Plaintiff's claims clearly fail on their merits, yet another factor which favors dismissal of this action.

Plaintiff's complaint contains three separate areas of claims. (Doc. 1). First, Plaintiff alleges a failure to protect and retaliation claim against Defendants Wetzel, Barnacle, Murray, Lamas, Eaton, Yarger, Pasequale, Walker, Milhelcic, Makosky, Wales and Spelas. Specifically, he alleges he was assaulted by two inmates on January 10, 2012, while he was alone in his cell at SCI-Rockview, and all inmates were being released for dinner. Id. Plaintiff believes the named Defendants are responsible because Plaintiff put them on notice of inadequate staffing levels to prevent inmate on inmate assaults and thefts and the Defendants ignored him in retaliation for Plaintiff filing grievances. Id. Plaintiff also alleges that Defendant Tipton failed to include in Plaintiff's medical record all the injuries Plaintiff sustained in the January 10, 2012 assault. Id.

Plaintiff's next alleges claims of retaliation, deprivation of property and denial of access to the courts against Defendant Karichner. Id. Plaintiff's claims arise out of a February 21, 2012 incident in which Defendant Karichner was transporting Plaintiff to another institution when he slammed on his brakes, causing Plaintiff to fly forward into a metal divider. Id. Additionally, Defendant Karichner allegedly took some of Plaintiff's legal property, thereby denying him access to the courts. Id.

Finally, Plaintiff claims that on February 9, 2010, Defendants Phelps and Wallance wrongly classified him in retaliation for filing grievances.

Defendants have presented competent summary judgment evidence which the Plaintiff has not rebutted2, which demonstrates that Plaintiff's claim the he was wrongly classified in retaliation for filing grievances is barred by the statute of limitations3; Plaintiff's claims against Defendant Karichner, arising from the February 21, 2012 bus trip are barred by collateral estoppel4; Plaintiff's access to the courts and property claims fail as a matter of law5; Defendants are entitled to summary judgment on Plaintiff's Eighth Amendment failure to protect claim6; and Defendant Tipton is entitled to dismissal on Plaintiff's Eighth Amendment medical claim.7

B. Balancing of the Poulis Factors

In balancing the Poulis factors, no single factor is dispositive, Ware, 322 F.3d at 222, and not all of the factors need be satisfied in order to dismiss a complaint. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). It is clear that, following a full analysis of the factors, the majority of the six factors weigh heavily in favor of Defendants and dismissal of the action for failure to prosecute. An appropriate order will issue.

2010 WL 3703808 Only the Westlaw citation is currently available.

This decision was reviewed by West editorial staff and not assigned editorial enhancements.

I. Background

*1 Pursuant to an Order entered on August 4, 2010 (Doc. 28), the Honorable John E. Jones referred the Defendant's pending Motion for Summary Judgment (Doc. 24) to the undersigned for the purpose of preparing a Report and Recommendation.

Plaintiff commenced this action on September 2, 2009 pursuant to Title VII, 42 U.S.C. § 2000e, et seq. and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq., asserting racial discrimination by Defendant, his former employer.1 On June 30, 2010, Defendant filed a Motion for Summary Judgment (Doc. 24) along with a supporting brief. (Doc. 25). On August 10, 2010, the court directed Plaintiff to file a brief in opposition to the pending motion inasmuch as the time for Plaintiff to file an appropriate response had passed.2 Plaintiff has neither filed an appropriate response nor requested an extension of time in which to do so.

II. Discussion

Generally, a dispositive motion may not be granted merely because it is unopposed. Because Local Rules of Court must be "construed and applied in a manner consistent with the Federal Rules of Civil Procedure," Anchorage Assoc. v. V.I. Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir.1990), the disposition of an unopposed motion ordinarily requires a merits analysis. The Third Circuit Court of Appeals has stated, however, that Local Rule 7.63 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency "if a party fails to comply with the [R]ule after a specific direction to comply from the court." Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991). Failure to prosecute an action may warrant dismissal under Federal Rule of Civil Procedure 41(b), which in pertinent part, provides:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication on the merits.

FRCP 41(b). The granting of an unopposed motion to dismiss is within the discretion of the court. When a plaintiff fails to prosecute or comply with a court order, the court may dismiss the action, with prejudice, under Rule 41(b). See Link v. Wabash R.R. Co., 370 U.S. 626, 629, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984) (identifying six factors that are appropriate to consider before dismissing a case for the plaintiffs late filing of a pretrial statement: (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 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.); Stackhouse, 951 F.2d at 30 (holding that failure of a plaintiff to comply with a court's specific direction to comply with a local rule requiring 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).

*2 In the instant case, Plaintiff was advised of the requirements of Local Rule 7.6 and directed to comply therewith in the August 10, 2010 Order directing him to file his opposition brief, and was warned of the consequences of failing to timely file his opposition in the latter order. Such dilatoriness outweighs any of the other considerations. See Poulis, supra. Accordingly, the pending Motion for Summary Judgment should be deemed unopposed and granted pursuant to Rule 41(b) of the Federal Rules of Civil Procedure both for failure to prosecute and for failure to comply with a court order.

III. Recommendation

Based on the foregoing, it is respectfully recommended that Defendant's Motion for Summary Judgment (Doc. 24) be granted.

All Citations

Not Reported in F.Supp.2d, 2010 WL 3703808.