IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ERIC HOUSTON, ET AL., :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-13-1930

:

D. MINK, ET AL., : (Judge Brann)

:

Defendants :

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM

February 19, 2015 Background

Eric Houston and Edward McDonald initiated this pro se this civil rights action

regarding their confinement at the United States Penitentiary, Lewisburg,

Pennsylvania (USP-Lewisburg). By Memorandum and Order dated January 21,

2015, a second complaint filed by Houston and McDonald, Houston, et al. v. Arnold,

et al., Civil No. 4:CV-13-2024 was consolidated into this matter pursuant to Federal

Rule of Civil Procedure 42(a).

As a result of Plaintiff McDonald’s failure to pay the required filing fee or file a

proper in forma pauperis applications and forms in either action his claims were

previously dismissed without prejudice. The Consolidated Complaints name various

USP-Lewisburg officials as defendants and raised similar vague contentions of being

subjected to racially motivated mistreatment, including mail interference, verbal

threats, food tampering, and excessive force, while housed in the prison’s Special

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Management Unit (SMU). However, no dates, specific incidents or conduct were

referenced. 

Since the exact nature of Plaintiff’s claims against the respective Defendants

was unknown, the January 21, 2015 Memorandum and Order directed Remaining

Plaintiff Houston to file a single amended complaint of no more then twenty-five (25)

pages in length, which clearly stated each claim he wished to pursue in a separate

legible paragraph; identifying which defendant[s] was involved in which conduct, and

specifying the relief he is seeking. The Plaintiff was forewarned that failure to timely

submit a proper amended complaint or otherwise respond to this Order within twentyone (21) days would result in dismissal of his action for failure to prosecute.

Discussion

Since entry of the January 21, 2015 Memorandum and Order, Remaining

Plaintiff Houston has not submitted a proposed Amended Complaint. The form

complaint which was mailed to Houston has not been returned and he has not

requested additional time in which to file an amended complaint. Houston has also

not offered any explanation for his failure to do so and he has not sought

reconsideration of the January 21, 2015 Order. Moreover, a review of the dockets

from both of the consolidated matters shows that the Remaining Plaintiff has not 

made any filings whatsoever in either matter. 

If a plaintiff fails to prosecute or comply with a court order, the court may

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dismiss the action, with prejudice. See Poulis v. State Farm Fire and Casualty Co.,

747 F.2d 863, 868 (3d Cir. 1984); Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d

Cir. 1991) (failure of a plaintiff to comply with a court’s specific direction to comply

with a local rule which required 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). In a similar case, the United StatesCourt of Appeals for the Third

Circuit recognized that a district court “has the authority to dismiss a suit sua sponte

for failure to prosecute by virtue of its inherent powers and Federal Rule of Civil

Procedure 41(b)” when a litigant fails to comply with a court order directing him to

file an amended complaint. See Azubuko v. Bell National Organization, 243 Fed.

Appx. 728, 729 (3d Cir. 2007).

The Third Circuit in Poulis set forth six (6) factors which must be considered in

determining whether to dismiss an action with prejudice for failure to prosecute: (1)

extent of the party’s personal involvement; (2) prejudice to the opposing party by the

dilatoriness; (3) whether a history of dilatoriness existed; (4) whether the dilatoriness

was willful and in bad faith; (5) possible effectiveness of alternative sanctions; and (6)

the merit of the claim or defense. See Adams v. Trustees, NJ Brewery Trust Fund, 29

F.3d 863 (3d Cir. 1994). 

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Adequate grounds have been established for the extreme sanction of dismissal.1

It is initially noted that even under the most generous treatment given to Plaintiff’s

Consolidated Complaints, those submissions simply failed to provide fair notice as to

the nature of Remaining Plaintiff Houston’s claims as required under Rule 8. Thus,

the Consolidated Complaints could not be allowed to proceed. Furthermore, although

Houston has been granted an abundance of time and supplied with a form civil rights

complaint he has failed to make any attempt to submit an amended complaint as

directed. Accordingly, a finding of dilatoriness and willful conduct is warranted. 

Second, other sanctions are not a viable alternative because this matter simply cannot

proceed without the filing of an adequate amended complaint. 

Based upon the present circumstances, dismissal of this action without

prejudice for failure to prosecute is warranted under the standards announced in

Azubuko and Poulis. An appropriate Order will enter.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

1 Although Azubuko, 243 Fed. Appx. at 729, recognizes a “balancing under

Poulis is unnecessary” in cases such as the present matter where a litigant’s conduct

makes adjudication of the case impossible, other Third Circuit decisions indicate that

the Poulis analysis should be undertaken. See Hernandez v. Palakovich, 293 Fed.

Appx. 890, 894 (3d Cir. 2008) (Poulis factors must be considered before dismissing a

case as a sanction for failure to follow a court order).

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