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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEVIN GENE SHROYER )

Plaintiff )

)

vs. ) C.A.No. 05-213 Erie

) District Judge Cohill

BRIAN O’BAKER, et al. ) Magistrate Judge Baxter

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I RECOMMENDATION

It is respectfully recommended that the instant civil rights action be dismissed due to

plaintiff’s failure to prosecute.

II REPORT

Plaintiff filed this civil action on July 28, 2005. 

By Order of this Court dated January 9, 2006, Plaintiff’s was directed to show cause

before January 26, 2006, for his failure to serve Defendants with the complaint. Document # 13.

Plaintiff was warned that failure to comply would result in the dismissal of this case for failure

to prosecute. To date, Plaintiff has failed to comply.

The United States Court of Appeals for the Third Circuit has set out a six-factor

balancing test to guide a court in determining whether dismissal of a case is appropriate. Poulis

v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 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. Id. at 868. Not all of the six factors need to weigh in

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favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988).

Applying the Poulis factors to the present matter, this Court recommends the dismissal

of this matter. Since the filing of this matter, Plaintiff has taken none of the necessary first steps

to prosecute this case - this case cannot proceed until the Defendants have been served with the

complaint. See generally Fed.R.Civ.P. 4. Further, Plaintiff has repeatedly ignored orders by this

Court. Plaintiff is proceeding pro se and therefore bears all of the responsibility for any failure

in the prosecution of his claims. Alternative sanctions, such as monetary penalties, are

inappropriate with indigent parties. Although it is possible that Plaintiff’s allegations could state

a claim upon which relief could be ultimately be granted, the merits of the claim are impossible

to determine at this early stage of the proceedings.

III CONCLUSION

For the foregoing reasons, it is respectfully recommended that this case be dismissed due

to Plaintiff’s failure to prosecute.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

Rule 72.1.4B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute

a waiver of any appellate rights.

S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: January 30, 2006

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