# Salvaggi v. Pennsylvania Board of Probation and Parole

> District Court, M.D. Pennsylvania · December 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10411032

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 6, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411032

## How later opinions describe it (automated extraction)

- stating that plaintiff's failure to file an amended complaint prejudices the defendants and compels dismissal
- 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

## Opinion text

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 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411032. Public record. Not legal advice.