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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARVIN ALBERTO VIVAS-MORALES, )

Plaintiff )

)

v. ) C.A. No. 03-312 Erie

) District Judge McLaughlin

UNITED STATES OF AMERICA, ) Magistrate Judge Baxter

Defendant. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I RECOMMENDATION

It is respectfully recommended that Defendant's motion to dismiss for failure to

prosecute [Document # 24] be granted and the instant civil rights action be dismissed for

plaintiff’s failure to prosecute.

II REPORT

Plaintiff, formerly an inmate incarcerated at the York County Prison in York,

Pennsylvania, filed this action pursuant to the Federal Torts Claim Act, 28 U.S.C. §§ 1346,

2671, et seq., on October 1, 2003. On July 5, 2005, Defendant filed a Notice of Deportation

[Document # 27] informing this Court that Plaintiff was deported from the United States on

March 19, 2005. Plaintiff has not notified this Court of his whereabouts.

Defendants have also informed this Court that Plaintiff failed to appear for his deposition

on multiple occasions, despite two orders of this Court requiring Plaintiff to attend depositions

that were scheduled to be held on February 25, 2005, and April 8, 2005. (See Defendant's Brief,

Exhibits 5 and 6; Document ## 21 and 22]. Plaintiff has also failed to respond to Defendant's

written discovery requests, and has failed to file his Pretrial Statement in compliance with this

Court's Case Management Order dated June 2, 2005 [Document # 23].

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

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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

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. Further, Plaintiff has 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 stage

of the proceedings.

III CONCLUSION

For the foregoing reasons, it is respectfully recommended that Defendant's motion to

dismiss for failure to prosecute [Document # 24] and 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 U.S. Magistrate Judge

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Dated: July 22, 2005

cc: The Honorable Sean J. McLaughlin

United States District Judge 

all parties of record (lw)

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