Salvaggi v. Pennsylvania Board of Probation and Parole

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL A. SALVAGGI, Civil No. 3:20-cv-1924

Plaintiff (Judge Mariani)

.

THE PENNSYLVANIA BOARD OF _ FILED

PROBATION AND PAROLE, etal, SCRANTON

Defendants pet 8

MEMORANDUM ma □□□

Plaintiff Michael Salvaggi (“Salvaggi’) is an individual who was formerly in the

custody of the Pennsylvania Department of Corrections. Before the Court is Defendants’

motion to dismiss pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute

and failure to comply with Court Orders. (Doc. 27). For the reasons set forth below, the

Court will grant Defendants’ motion.

Factual Background & Procedural History

Salvaggi commenced this action pursuant to 42 U.S.C. § 1983. (Doc. 1). Named as

Defendants are the Pennsylvania Board of Probation and Parole, Parole Supervisor

Bernard Dabaskas, and Parole Agent Cheryl Zaladonis.

Salvaggi absconded on November 12, 2021. (See Docs. 28-1, 28-2). In an effort to

ascertain the custodial status of Salvaggi, the Court accessed the Victim Information and

Notification Everyday portal (“VINELink’) and entered his inmate number (HD2567), which

confirmed that Salvaggi is “out of custody” and has “absconded.” See VINELink,

https://vinelink.com/#/search (last accessed December 6, 2021). Because the Court has

been unable to communicate with Salvaggi, an Order was issued directing Salvaggi to

provide his current address and to notify the Court as to whether he intended on pursuing

this action, and warning him that a failure to respond, or return of the Order as

undeliverable, would be construed as an abandonment of the litigation and result in

dismissal of this action. (Doc. 30). Salvaggi failed to respond in any way to the Court’s

Order.

On November 22, 2021, Defendants filed a motion to dismiss pursuant to Rule 41(b)

of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with

Court Orders. (Doc. 27). Salvaggi failed to respond to the motion and the time for

responding has now passed. The motion is deemed unopposed and ripe for resolution.

Il. Discussion

In moving to dismiss pursuant to Rule 41(b), Defendants contend that the factors set

forth by the United States Court of Appeals for the Third Circuit in Poulis v. State Farm Fire

& Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), support dismissal of Salvaggi’s complaint.

(Docs. 27, 28). The Poulis court has identified six factors a court should consider before

dismissing an action for failure to prosecute:

(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

2 .

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.

Poulis, 747 F.2d at 868 (emphases omitted). Not all of the Poulis factors need be satisfied

to dismiss a complaint. See Shahin v. Delaware, 345 F. App’x 815, 817 (3d Cir. 2009)

(citing Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).

in the present matter, Salvaggi is pro se and is solely responsible for his actions.

See Colon v. Karnes, 2012 U.S. Dist. LEXIS 14692, at *7 (M.D. Pa. 2012) (“Plaintiff is

proceeding pro se, and thus is responsible for his own actions.”). Salvaggi has not

communicated with the Court for approximately six months. The Court can only conclude

that Salvaggi is personally responsible for failing to inform the Court of his whereabouts.

Second, prejudice to the adversary generally includes “the irretrievable loss of

evidence, the inevitable dimming of witnesses’ memories or the excessive and possibly

irremediable burdens or costs imposed on the opposing party.” Adams v. Trustees of N.J.

Brewery Emps.’ Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). Prejudice also

includes “the burden imposed by impeding a party's ability to prepare effectively a full and

complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003).

Salvaggi’s continued failure to communicate with the Court and his continued inaction

frustrates and delays the resolution of this case. This failure to communicate prejudices the

Defendants who likely seek a timely resolution of the case. See Azubuko v. Bell National

Organization, 243 F. App’x 728, 729 (3d Cir. 2007) (stating that plaintiff's failure to file an

amended complaint prejudices the defendants and compels dismissal).

Third, Salvaggi has established a history of diatoriness through his failure to notify

the Court of his whereabouts and failure to comply with Court Orders and rules. As is clear

from the procedural background of this case, Salvaggi has not communicated with the Court

since June 2021. (Doc. 20). On November 22, 2021, the Court issued an Order directing

Salvaggi to provide his current address and to notify the Court as to whether he intended on

pursuing this action, and notifying him that a failure to respond, or return of the Order as

undeliverable, would be construed as an abandonment of the litigation and result in

dismissal of this action. (Doc. 30). The deadline to file the notice has expired. A pro se

plaintiff has the affirmative obligation to keep the Court informed of his address. (See M.D.

PA. L.R. 83.18 (providing that a pro se plaintiff “shall maintain on file with the clerk a current

address at which all notices and copies of pleadings, motions or papers in the action may

be served upon such party.”)). It is clear that Salvaggi has failed to comply with the terms

set forth in Local Rule 83.18.

Regarding the next factor, “‘wiilifulness involves intentional or self-serving behavior.”

Adams, 29 F.3d at 874. It appears that at least some of this dilatory behavior was

performed willfully and in bad faith, as Salvaggi has offered no explanation for his failure to

communicate with the Court and failure to provide the Court with his current address.

Gagliardi v. Courter, 144 F. App’x 267, 268 (3d Cir. 2005) (holding that the district court did

not abuse its discretion by dismissing plaintiffs complaint for failure to prosecute, where

plaintiff failed to respond to defendants’ motion to dismiss for more than three months and

this failure to comply prejudiced defendants).

Fifth, a district court must consider the availability of sanctions alternative to

dismissal. Poulis, 747 F.2d at 869. Given Salvaggi’s indigence, alternative, monetary,

sanctions would not be effective. See Dennis v. Feeney, 2012 U.S. Dist. LEXIS 7328, at *5

(M.D. Pa. 2012) (finding, ‘monetary sanctions are unlikely to be efficacious given that

Plaintiff is indigent”). Moreover, the Court is incapable of imposing a lesser sanction without

knowledge of Salvaggi’s whereabouts.

The final Poulis factor is meritoriousness of the claim. A claim will be deemed

meritorious when the allegations of the complaint, if established at trial, would support

recovery. Poulis, 747 F.2d at 870. The standard for a Rule 12(b)(6) motion to dismiss is

utilized in determining whether a claim is meritorious. Poulis, 747 F.2d at 869-70. The

Court finds that consideration of this factor cannot save Salvaggi's claims, since he is now

wholly non-compliant with his obligations as a litigant. Thus, the weight of this factor is

lessened and, following a full analysis of the Poulis factors, the majority of the six factors

weigh in favor of Defendants.

lil. Conclusion

Salvaggi’s last communication with the Court was in June 2021. Itis clear that

Salvaggi has absconded and is no longer in custody. Despite being ordered to provide the

Court with his current address, Salvaggi has failed to reply and failed to move this litigation

forward. The Court finds that any further action on this case would constitute a waste of

judicial resources. Therefore, Defendants’ motion (Doc. 27) to dismiss pursuant to Federal

Rule of Civil Procedure 41(b) will be granted.

A separate Order shall issue. ao,

Robert D. Mariarii

, United States District Judge

Dated: December 2021 .