HARRIS v. C.O. SMITH & C.O. FLOOD

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

DEMETRIUS HARRIS, ) Civil Action No. 2:24-CV-12-JNR-CBB

)

)

Plaintiff, )

) United States District Judge

vs. ) J. Nicholas Ranjan

)

C.O.I SMITH, C.O.I FLOOD, L.T. )

) United States Magistrate Judge

SMITH, U.M. DICK, GRIEVANCE ) Christopher B. Brown

COOR. M. ANDREETTI, )

)

)

Defendants,

)

REPORT AND RECOMMENDATION

Christopher B. Brown, United States Magistrate Judge

I. Recommendation

Plaintiff Demetrius Harris (“Harris”) initiated this civil rights action pursuant

to 42 U.S.C. § 1983, alleging Defendants Smith, Flood, Smith, Dick, and Andreetti

violated his rights under the First, Eighth, and Fourteenth Amendments when they

denied him a religious meal as a practicing Muslim in December 2023. ECF No. 31.

The Court has subject matter jurisdiction under 28 U.S.C. § 1331.1

Pending before the Court is the Corrections’ Defendants Motion to Dismiss

for Failure to State a Claim under Fed. R. Civ. P. 12(b)(6). ECF No. 41. Harris was

1 This matter has been referred to the undersigned United States Magistrate Judge for a

Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). This

matter was originally assigned to Magistrate Judge Cynthia Reed Eddy. Upon Judge Eddy’s

retirement, the matter was reassigned on April 23, 2024 to Chief Magistrate Judge Richard A.

Lanzillo. On July 3, 2024, by Administrative Order 2024-07 filed at 2:24-mc-10001, the matter was

reassigned to this member of the Court.

ordered to file his Opposition by March 5, 2025 but failed to do so. ECF No. 43.

Harris also did not respond to the Court’s Order to Show Cause by the May 7, 2025

deadline, ECF No. 44, and has not participated in this case since in nearly six

months. ECF No. 36.

For the reasons below, it is respectfully recommended that the Court dismiss

this action for failure to prosecute, deny the pending Rule (12)(b) Motion to Dismiss

(ECF No. 41) as moot, and dismiss Harris’ claims with prejudice.

II. Report

Harris was in the custody of the Department of Corrections (“DOC”) at SCI-

Greene when he initiated this civil action against Defendants on January 4, 2024.

ECF No. 1. He is proceeding pro se and in forma pauperis. ECF No. 7. Harris – a

practicing Muslim – alleges Defendants did not provide him with a religious-

compliant food tray on December 3, 2023. ECF No. 31. He brings claims for

retaliation, conditions of confinement, equal protection, and due process. Id.

Harris has now seemingly abandoned his claims. Harris missed multiple

deadlines and opportunities to respond to the Defendants’ Motion to Dismiss,

missed the Court’s Deadline to Show Cause, and has failed to update his address

with the Court.

On January 23, 2025, the Court set the Briefing Schedule on Defendants’

Motion to Dismiss and gave Harris until March 5, 2025 – forty-one days – to

respond to the Motion to Dismiss. ECF No. 43. Harris missed the March 5, 2025

deadline without an explanation or request for extension. On April 7, 2025, the

Court then directed Plaintiff to show cause by May 7, 2025 – over eight weeks from

his original deadline – for his failure to respond to Defendants’ Motion to Dismiss.

ECF No. 44. Harris missed that deadline as well, with no further communication to

the Court.

As confirmed with the SCI-Greene Records Department, Harris was released

from DOC custody on April 23, 2025 and has since failed to provide the Court with a

change of address. 2 Harris has not taken any action in this case since he filed a

Motion to Appoint Counsel on December 31, 2024. ECF No. 36.

After nearly six months of inaction, Harris’ failure to respond to Defendants’

Motion to Dismiss and failure to provide the Court and counsel with an adequate

address reflects his lack of prosecution of this case. A federal court has the

discretion to dismiss a proceeding based on a party’s failure to prosecute. Link v.

Wabash R. Co., 370 U.S. 626, 629–30 (1962); Qadr v. Overmyer, 642 F. App’x 100,

102 (3d Cir. 2016) (citing Fed. R. Civ. P. 41(b)). Fed. R. Civ. P. 41(b) states in

pertinent part:

Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to

comply with these rules or a court order, a defendant may move to

dismiss the action or any claim against it. Unless the dismissal order

states otherwise, a dismissal under this subdivision (b) . . . operates as

an adjudication on the merits.

Fed. R. Civ. P. 41(b).

2 Plaintiff was not released until April 23, 2025. Therefore he would have received the Court’s

January 23, 2025 Briefing Schedule on the Motion to Dismiss, ECF No. 43, and the Court’s April 7,

2025 Order to Show Cause, ECF No. 44, prior to his release.

A district court has the power to dismiss a case pursuant to Fed. R. Civ. P.

41(b) for failure to prosecute even if the plaintiff is proceeding pro se. The Sixth

Circuit Court of Appeals has stated that “while pro se litigants may be entitled to

some latitude when dealing with sophisticated legal issues, acknowledging their

lack of formal training, there is no cause for extending this margin to

straightforward procedural requirements that a layperson can comprehend as easily

as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Thus, a pro se

litigant’s failure to prosecute is not the same as “inartful pleading or [a] lack of legal

training.” Id. at 110.

The Third Circuit Court of Appeals laid out factors that a court must consider

when determining whether a case should be dismissed for the plaintiff’s failure to

prosecute in Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863, 868

(3d Cir. 1984). These factors are: (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 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. Id.

Based on these factors, it is respectfully recommended that this case be

dismissed for Harris’ failure to prosecute. The first five factors all weigh heavily in

favor of dismissal. Because Harris is proceeding pro se, “the responsibility of

moving the case forward lies with him.” Cravener v. McClister, No. 2:23-CV-00355,

2023 WL 7168929, at *3 (W.D. Pa. Oct. 9, 2023), report and recommendation

adopted, No. CV 23-355, 2023 WL 7166475 (W.D. Pa. Oct. 31, 2023). And yet,

Harris has not participated in this case in nearly six months.

He was released from DOC Custody in April 2025 but has not updated his

address. Neither the Court nor Defense Counsel can reach him. The Court cannot

rule on the pending Rule 12(b) Motion to Dismiss if it cannot reach the Plaintiff, nor

can Defense Counsel engage in discovery. The case simply cannot move forward

with a non-responsive Plaintiff. Additionally, under factor five, there are no

alternative sanctions which would adequately punish Harris for his failure to

prosecute his case; imposing a monetary sanction against Harris who is proceeding

in forma pauperis would not be effective as he appears impecunious.

Only factor 6 is neutral. The Defendants’ pending Rule 12(b) Motion to

Dismiss has not been fully briefed, so it is unclear at this stage whether Harris’

claims would survive dismissal. It is also not apparent whether his claims would

survive summary judgment even if they should survive the motion to dismiss stage.

But not all the Poulis factors “need be met for a district court to find dismissal is

warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).

On balance, five factors weigh heavily in favor of dismissal and only one

factor is neutral. Given this, it is respectfully recommended that the Court dismiss

this action for failure to prosecute, deny the pending Rule (12)(b) Motion to Dismiss

as moot (ECF No. 41), and dismiss Harris’ claims with prejudice.

III. Conclusion

Based on the above, it is respectfully recommended that the Court dismiss

this action for failure to prosecute, deny the pending Motion to Dismiss (ECF No.

41) as moot, and dismiss Harris’ claims with prejudice pursuant to Fed. R. Civ. P.

41(b).

Any party is permitted to file written specific Objections to this Report and

Recommendation to the assigned United States District Judge. In accordance with

28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(2), and LCvR 72.D.2, Harris, because he

is a non-electronically registered party, must file written objections, if any, to this

Report and Recommendation by August 8, 2025. Defendants, because they are

electronically registered parties, must file objections, if any, by August 5, 2025. Any

party opposing the Objections shall have fourteen (14) days from the date of service

of the Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). The parties are

cautioned that failure to file Objections within this timeframe “will waive the right

to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011) (quoting

Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983)). See also EEOC v. City of Long

Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review

when no timely and specific objections are filed as limited to review for plain error).

DATED this 22nd day of July, 2025.

BY THE COURT:

s/Christopher B. Brown

United States Magistrate Judge

CC: United States District Judge

J. Nicholas Ranjan

DEMETRIUS HARRIS

JM5958

SCI GREENE

169 PROGRESS DRIVE

WAYNESBURG, PA 15370

All counsel of record, via ECF