REPORT AND RECOMMENDATION
SUSAN E. SCHWAB, Chief Magistrate Judge.
I. Introduction.
Before this court is the civil rights action of pro se plaintiff Jacob Ray Rivera ("Rivera"), who raises claims pursuant to 42 U.S.C. § 1983 that concern his receipt of inadequate medical care and his placement in administrative segregation while incarcerated at SCI Camp Hill. Rivera, who was paroled, has failed for several months either to file an amended complaint or to update his address with this court, suggesting that he has abandoned this lawsuit. Because Rivera has not complied with this court's order to show cause, we recommend that the Court dismiss his case pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.
II. Background and Procedural History.
On February 20, 2013, Rivera filed this 42 U.S.C. § 1983 complaint pro se in the Eastern District of Pennsylvania. Doc. 17. His case was transferred to the Middle District by order on May 20, 2013. Doc. 7. We issued a Standing Practice Order on May 22, 2013, that notified Rivera of his "affirmative obligation to keep the Court informed of his . . . current address" and of the possibility that should he fail to keep this court informed he would be deemed to have abandoned the lawsuit. Doc. 9. We granted Rivera's motion to proceed in forma pauperis on January 7, 2015. See docs 13, 14.
Rivera's complaint named defendant P.A. Diebert ("Diebert") and a group of defendants from the Department of Corrections ("DOC defendants"). Doc 17. Both the DOC defendants and Diebert filed motions to dismiss and supporting briefs. See docs. 29, 30, 36, 37. Rivera filed his brief in opposition on November 27, 2015. Doc. 39. We then issued a report and recommendation that Diebert's motion to dismiss be denied in part and granted in part. Doc. 41 at 18. Further, this court recommended that the DOC defendants' motion to dismiss be granted. Id. Finally, we recommended that Rivera be granted leave to amend his complaint as to Diebert. Id. The Court adopted our report and recommendation through a Memorandum and Order dated September 12, 2016. See docs. 42, 43.
On April 27, 2017, we ordered Rivera to file an amended complaint on or before May 24, 2017. Doc. 52. Rivera's last filing with this court was a motion for an extension of time and for court-appointed counsel on May 15, 2017. Doc. 53. We denied Rivera's motion for court-appointed counsel but granted Rivera's motion for an extension of time on June 2, 2017. Doc. 54. Rivera's copy of the order, however, was returned as undeliverable on August 4, 2017. Doc. 55. Annotations to the returned mail suggest that Rivera had been paroled but did not provide a forwarding address. Id. After waiting two months for updated information from Rivera, we issued an order on October 4, 2017 to show cause why Rivera's case should not be dismissed for failure to prosecute. Doc. 56. Rivera's copy of the order was also returned as undeliverable. Doc. 57.
III. Discussion.
Rivera has not contacted this court in over eight months, and has not provided us with an avenue for contacting him because he has not left a forwarding address. Under these circumstances his case should be dismissed. The Federal Rules of Civil Procedure provide that an action may be involuntarily dismissed, "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Fed. R. Civ. P. 41(b). In determining whether to dismiss a case as a sanction for plaintiff's failure to prosecute, a district court of the Third Circuit must weigh the six factors of the Poulis balancing test:
(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 and analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). No single factor is dispositive, Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008), and each factor need not be satisfied for the court to dismiss an action, Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). A weighing of the six Poulis factors suggests that Rivera's case should be dismissed.
The first Poulis factor is the extent of the party's personal responsibility. This factor weighs in favor of dismissal because Rivera is personally responsible for his failure to comply with both Local Rule 83.18 and this court's Standing Practice Order (doc. 9). Local Rule 83.18 provides that unrepresented parties "shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served . . . ." This court's Standing Practice Order of May 22, 2013, further provides:
A pro se plaintiff has the affirmative obligation to keep the court informed of his or her current address. If the plaintiff changes his or her address while this lawsuit is being litigated, the plaintiff shall immediately inform the court of the change, in writing. If the court is unable to communicate with the plaintiff because the plaintiff has failed to notify the court of his or her address, the plaintiff will be deemed to have abandoned the lawsuit.
Doc. 9 at 4. By either measure, Rivera knew of his obligation to contact this court and to update his address information after he was paroled. Instead he did nothing, and subsequent attempts to communicate with him were returned as undeliverable. See docs. 55, 57. Rivera, therefore, is personally responsible for his noncompliance with the Local Rule and this court's Standing Practice Order.
The second Poulis factor is prejudice to the adversary. Prejudice to the adversary bears substantial weight in support of dismissal of a claim. Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir. 1994). Prejudice generally includes "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. at 874. Although Rivera's failure to update his address has not yet resulted in prejudice to Diebert, there is no way forward for this case if Rivera cannot be contacted. Rivera's silence for over eight months has certainly frustrated Diebert's interest in a timely resolution of this case. Cf. Fed. R. Civ. P. 1 ("These rules . . . should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.").
The third Poulis factor is a history of dilatoriness. A history of dilatoriness may be found in "extensive or repeated delay or delinquency," such as "consistent non-response to interrogatories, or constant tardiness in complying with court orders." Adams, 29 F.3d at 874; see also Ware, 322 F.3d at 222. Here, despite Rivera's failure to update his address or to respond to the order to show cause, we cannot say that his conduct has been consistently dilatory.
The fourth Poulis factor is whether the conduct was willful or in bad faith. Under this factor, this Court must consider whether the conduct was "the type of willful or contumacious behavior which was characterized as flagrant bad faith." Adams, 29 F.3d at 875. "Willfulness involves intentional or self-serving behavior." Id. Bad faith is found when the conduct goes beyond mere negligence. Emerson v. Thiel Coll., 296 F.3d 184, 191 (2002). Here, because Rivera has not responded to the show cause order, we cannot readily determine whether his conduct was willful or done in bad faith.
The fifth Poulis factor is the effectiveness of alternate sanctions. This factor weighs in favor of dismissal because dismissal is the only sanction that would be effective in Rivera's situation. Although a district court must consider the availability of alternate sanctions, Poulis, 747 F.2d at 869, alternate sanctions would be ineffective in the context of a pro se plaintiff proceeding in forma pauperis. See Emerson, 296 F.3d at 191. Dismissal is the only appropriate sanction for Rivera, a pro se plaintiff proceeding in forma pauperis who has been incommunicado for eight months.
The sixth Poulis factor is the meritoriousness of the claim. A claim is meritorious when the allegations of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. Yet even if a claim is meritorious, a plaintiff must act to pursue it if he or she is to have any hope of recovery. Here, Rivera has abandoned his claim, whether or not it is meritorious, through the kind of prolonged inaction that is incompatible with maintaining a lawsuit.
In sum, the Poulis factors weigh in favor of dismissal. Rivera has not complied with either the Local Rules or this court's Standing Practice Order because he failed to update his address and never responded to the show cause order. We accordingly recommend that the Court dismiss the case.
IV. Recommendation.
As a result, WE RECOMMEND that Rivera's case be DISMISSED and the case file be CLOSED.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her on determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
