UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

FRANK BRUTON, :

:

Plaintiffs : No. 4:CV-04-0411

:

vs. : (Complaint Filed 02/25/04) 

:

: (Judge Muir)

C.O. SAWCHUCK, et al., :

:

Defendants :

ORDER

May 5, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On February 25, 2004, Plaintiff, Frank Bruton, filed the

above-captioned civil rights complaint pursuant to 42 U.S.C. §

1983. On March 30, 2004, plaintiff filed an amended complaint.

(Doc. No. 15). On April 15, 2004, service of plaintiff's

amended complaint was ordered. (Doc. No. 23). Defendants filed

an answer to the amended complaint on July 6, 2004. (Doc. No.

33). On September 22, 2004, the Court issued a scheduling

order directing that discovery be completed by January 6, 2005

and dispositive motions be filed on or before February 7, 2005.

(Doc. No. 53). On December 20, 2004, defendants filed with the

Court a notice of plaintiff's death. (Doc. No. 58). By Order

dated January 18, 2005, the Court vacated its September 22,

2004, scheduling order and directed that plaintiff's successor

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file a motion for substitution in accordance with

FED.R.CIV.P.25(a)(1), on or before April 30, 2005. (Doc. No.

60). The Order forewarned that failure of plaintiff's

successor to file a motion for substitution within the relevant

time period would result in dismissal of the action pursuant to

FED.R.CIV.P. 41. As of the date of this Order, plaintiff's

successor has neither filed a motion for substitution nor

requested an enlargement of time within which to do so. Thus,

for the reasons that follow, the Court will dismiss the action.

Discussion

When a plaintiff fails to prosecute or comply with a court

order, the court may dismiss the action, with prejudice,

pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

Link v. Wabash Railroad Co., 370 U.S. 626, 629 (1962). In

Link, the Supreme Court stated:

The authority of a federal trial court to dismiss a

plaintiff’s action with prejudice because of his

failure to prosecute cannot seriously be doubted.

The power to invoke this sanction is necessary in

order to prevent undue delays in disposition of

pending cases and to avoid congestion in the

calendars of the District Courts. The power is of

ancient origin, having its roots in judgment of

nonsuit and non prosequitur entered at common law. .

. .It has been expressly recognized in Federal Rule

of Civil Procedure 41(b)....

Id. at 629-30. 

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There has been no activity on this case since the issuance

of this Court's January 18, 2005 Order. Thus, it is clear that

plaintiff's successor has failed to comply with this Court's

Order and prosecute the case. Under these circumstances, it

would be a waste of judicial resources to allow this action to

continue. This Court is satisfied that based on the present

circumstances, dismissal for failure to prosecute is warranted.

See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d

Cir. 1984). Pursuant to Federal Rule of Civil Procedure 41(b),

the above-captioned action will be dismissed for both failure

to prosecute and failure to comply with a Court order.

An appropriate order will enter. 

IT IS HEREBY ORDERED THAT:

1. Pursuant to Rule 41(b) of the Federal Rules

of Civil Procedure, plaintiff’s complaint is

dismissed for failure to prosecute and

failure to comply with a court Order,

without prejudice. 

2. The Clerk of Court is directed to close this case. 

3. Any appeal taken from this order will be

deemed frivolous, without probable cause,

and not taken in good faith.

 s/Malcolm Muir

 

MUIR

United States District Judge

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