UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GRISHELDA JACKSON, : CIVIL NO. 4:05-CV-01304

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Smyser)

:

CORRECTION OFFICER JOHNSON, :

:

Defendant :

REPORT AND RECOMMENDATION

The plaintiff, a prisoner proceeding pro se, commenced

this 42 U.S.C. § 1983 action by filing a complaint on June 29,

2005. 

On May 2, 2006, defendant Johnson, the only remaining

defendant, filed a motion for summary judgment. Also on May 2,

2006, the defendant filed a brief, a statement of material facts,

and exhibits in support of his motion for summary judgment. The

plaintiff did not file a brief in opposition to the motion for

Case 4:05-cv-01304-JEJ Document 29 Filed 07/05/06 Page 1 of 5
2

summary judgment as required by Local Rule 7.6, Rules of Court,

M.D. Pa. 

By an Order dated May 30, 2006, the plaintiff was ordered

to file a brief in opposition to the defendant’s motion for

summary judgment, a response to the defendant’s statement of

material facts and any summary judgment evidence in opposition to

the motion on or before June 19, 2006. The Order of May 30,

2006, warned the plaintiff that if she failed to file a brief in

opposition, we would consider recommending that this action be

dismissed pursuant to Fed.R.Civ.P. 41(b), by application of the

factors in Poulis v. State Farm Fire & Casualty Co., 747 F.2d

863, 868 (3d Cir. 1984). 

The plaintiff has not filed a brief in opposition to the

defendant’s motion for summary judgment as ordered. 

Federal Rule of Civil Procedure 41(b) allows for the

dismissal of an action where the plaintiff fails to prosecute or

fails to comply with rules or orders of the court. The plaintiff

has failed to prosecute this action and has failed to obey the

Case 4:05-cv-01304-JEJ Document 29 Filed 07/05/06 Page 2 of 5
3

court's Order of May 30, 2006, and Local Rule 7.6 (formerly Rule

401.6), which requires the filing of an opposition brief. The

case should be dismissed pursuant to Fed.R.Civ.P. 41(b).

In Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir.

1991), the court reversed the district court's dismissal for the

pro se plaintiff's failure to file a brief in accordance with

Rule 401.6, Rules of Court, M.D. Pa. The court stated that

failure to obey the local rule should not form the basis for

dismissal without an analysis of the merits of the case. The

court noted that dismissal was not to be ruled out if the party

was represented by an attorney and in fact did not oppose the

motion. "Nor do we suggest that if a party fails to comply with

the rule after a specific direction to comply from the court, the

rule cannot be invoked. Thus, our holding is not broad." 951

F.2d at 30. 

In this case, the plaintiff was specifically directed to

file a brief in opposition to the motion for summary judgment. 

The plaintiff did not obey either the rule or the Order.

Case 4:05-cv-01304-JEJ Document 29 Filed 07/05/06 Page 3 of 5
4

The Third Circuit has applied the same general analysis,

using some or all of the six part test enunciated in Poulis v.

State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984),

in reviewing all orders which deprive a party of the right to

proceed with or defend a claim. Comdyne I, Inc. v. Corbin, 908

F.2d 1142, 1148 (3d Cir. 1990). The Poulis factors the court

should consider are:

(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. 

Id.

The plaintiff’s dilatoriness outweighs any of the other

considerations set forth in Poulis. The plaintiff’s failure to

comply with the Order of May 30, 2006, indicates that the

plaintiff has abandoned this lawsuit.

Case 4:05-cv-01304-JEJ Document 29 Filed 07/05/06 Page 4 of 5
5

Based on the foregoing, it is recommended that the action

be dismissed pursuant to Fed.R.Civ.P.41(b), for the plaintiff's

failure to obey Local Rule 7.6 and the Order of May 30, 2006.

/s/ J. Andrew Smyser 

J. Andrew Smyser

Magistrate Judge

Date: July 5, 2006.

Case 4:05-cv-01304-JEJ Document 29 Filed 07/05/06 Page 5 of 5