· 
 , 

IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


RANDY R. WALLACE, JR., ) 


) 


Plaintiff, ) 


) 


v. 	 ) Civil Action No.1: 1 0-cv-00042 Erie 

) 

SOCIAL SECURITY ADMINISTRATION, ) 

) 

Defendant. ) 

MEMORANDUM ORDER 

Plaintiff, Randy R. Wallace, Jr., filed an appeal from his denial of SSI benefits, 

demanding "$250,000 for pain and suffering and appro va [sic] for SSI from the Social Security 

Administration." He filed with this Court a Motion for Leave to Proceed In Forma Pauperis 

(Docket #1), together with a proposed Complaint, on February 19,2010. 

However, Plaintiff neglected to sign the "I declare under penalty of perjury that the 

foregoing is true and correct," paragraph which appears on Page Two ofthe Motion for Leave to 

Proceed In Forma Pauperis, as is required. On March 9, 2010 we entered an Order denying the 

Motion, without prejudice, and returning Plaintiff's Motion to Proceed in forma pauperis to him 

with instructions to resubmit his Motion with the under penalty of perjury clause signed. 

Plaintiff was to have resubmitted his corrected motion by March 24, 2010 but failed to do so. 

We thereafter entered an order requiring Plaintiff on or before April 23, 2010, to forward 

to the Clerk, U.S. District Court for the Western District of Pennsylvania, the required filing fee 

or suffer dismissal ofthis action for failure to prosecute. He has not done so. 

A federal court has the discretion to dismiss a proceeding based on a party's failure to 

prosecute the action. Mindek v. Rigatti, 964 F.2d 1369 (3d Cir.1992). In Poulis v. State Farm 

Case 1:10-cv-00042-MBC Document 4 Filed 04/27/10 Page 1 of 3
Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984), the Court ofAppeals for the Third Circuit 

set out a six-factor balancing test to guide a court's analysis as to whether to dismiss a claim as a 

sanction: 

(1) the extent ofthe 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 ofthe 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 ofthe claim or defense. 

Although a court must balance the six factors, it need not find that all factors are met 

before it may dismiss an action with prejUdice. Hoxworth v. Blinder, Robinson & Co., 980 F.2d 

912 (3d Cir.l992) (court applies some or all of the six-part test in reviewing sanction orders that 

deprive a party ofthe right to proceed with or defend against a claim); Mindek v. Rigatti, 964 

F.2d 1369, 1373 (3d Cir.1992) (it is not necessary that all of the factors point toward a default 

before that sanction will be upheld). Under these directives, this Court will analyze the present 

action to determine whether it should dismiss the Complaint based on the Plaintiffs failure to 

prosecute. 

Plaintiff has failed to comply with our orders and has not taken the necessary first steps to 

prosecute this case. Plaintiff is proceeding pro se in this action. Thus, all actions must be 

attributable to him as he has no counsel upon which he is relying to proceed to prosecute his 

case. Accordingly, under the first factor, it appears that Plaintiff personally is responsible for the 

failure to pay the filing fee or move to proceed in forma pauperis. With respect to the second 

factor, there appears to be no specific prejudice to Defendants other than general delay. With 

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• 

respect to the third factor, Plaintiff has shown dilatoriness in proceeding with his action. With 

respect to the fourth factor, this Court cannot detennine whether the conduct ofthe Plaintiff was 

willful or in bad faith. The fifth factor to consider is the effectiveness ofsanctions other than 

dismissal. It does not appear that monetary sanctions are appropriate. Finally, it does not appear 

from Plaintiffs allegations that he has a high likelihood to prevail, specifically with respect to his 

claim for damages as a result of pain and suffering. 

0;. 

AND NOW, this ). '" day of April, 2010, IT IS HEREBY ORDERED THAT this 

action is DISMISSED without prejudice on the grounds that the petition for leave to proceed in 

fonna pauperis is deficient, 28 U.S.C. § 1915 (a)(1), and on the grounds offailure to prosecute . 

. t. eo {i;.tl. L \.:-, 

Maurice B. Cohill, Jr. 

United States District Judge 

cc: 	 Randy R. Wallace, Jr., Pro se 


703 West 19th Street 


Erie, P A 16502 


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