BROWN

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

VERNON L. BROWN, )

)

Plaintiff, ) Civil Action No. 16-1824

)

v. ) Judge Cathy Bissoon/

) Chief Magistrate Judge Maureen P. Kelly

MATRIX PROPERTY MANAGEMENT )

COMPANY, )

)

Defendant. )

REPORT AND RECOMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Third Amended Complaint filed in the above-

captioned case, ECF No. 63, be dismissed for failure to prosecute.

II. REPORT

Plaintiff Vernon L. Brown, proceeding pro se, commenced the instant action in

December 2016, seeking redress for an allegedly illegal eviction from his residence. ECF No. 3.

On February 28, 2018, Plaintiff filed the operative Third Amended Complaint, a fair reading of

which reveals that he is raising a claim of housing discrimination on the basis of his sex in

violation of the Fair Housing Act. ECF No. 63. On June 27, 2018, Defendant’s Motion to

Dismiss Plaintiff’s Third Amended Complaint was denied. ECF No. 72.

On June 27, 2018, the Order denying the Motion to Dismiss was mailed to Plaintiff at

two addresses: (1) P.O. Box 6814, Pittsburgh, PA 15212 (an address Plaintiff provided to the

Court on November 20, 2017, ECF No. 50); and (2) 411 Delaware Avenue Unit 1B, Rochester,

PA 15074 (an address Plaintiff included in his most recent filing, ECF No. 71 at 5). The Order

mailed to P.O. Box 6814 was returned as not deliverable. ECF No. 76.

On June 28, 2018, this Court issued an Order Scheduling Initial Case Management

Conference. ECF No. 73. This Order was mailed to Plaintiff at both addresses. The Order

mailed to 411 Delaware Avenue was returned as “Moved Left No Address.” ECF No. 74. The

Order mailed to P.O. Box 6814 was returned as not deliverable. ECF No. 77.

On July 8, 2018, this Court issued an Order denying Plaintiff’s Motion of Faith. ECF No.

75. The copy of that Order mailed to Plaintiff at 411 Delaware Avenue was returned as “moved

left no address unable to forward.” ECF No. 76.

On July 25, 2018, this Court conducted an Initial Case Management Conference as

scheduled. ECF No. 78. Plaintiff failed to appear at the conference. Id. Thereafter, this Court

entered an Order to Show Cause on or before August 8, 2018, why Plaintiff failed to appear at

the Initial Case Management Conference. ECF No. 79. Plaintiff did not respond to the Order to

Show Cause.

It is clear that the punitive dismissal of an action for failure to comply with court orders is

left to the discretion of the court. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). In

determining whether an action should be dismissed as a sanction against a party the court must

consider six factors. These factors, as set forth in Poulis v. State Farm Fire and Casualty

Company, 747 F.2d 863, 868 (3d Cir. 1984), are as follows:

(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.

(6) The meritoriousness of the claim or defense.

Consideration of these factors suggests that the instant action should be dismissed.

Factors 1, 3, and 4 all relate to Plaintiff’s conduct, which weighs heavily against him.

Plaintiff’s failure to keep this Court apprised of a current mailing address, to attend a scheduled

court conference and to respond to the Court’s Order to Show Cause, which were solely his

personal responsibility, appears willful and constitutes a history of dilatoriness.

With respect to the Factor 2 - the prejudice caused to the adversary by Plaintiff’s failure

to comply with this Court’s order - Defendant has suffered delay in having the claims brought

against it resolved. Defendant’s counsel did appear at the Initial Case Management Conference.

Factor 6 - the meritoriousness of the claim - will be weighed neither in favor nor against

Plaintiff at this stage of the case. Nevertheless, “[n]ot all of these factors need be met for a

district court to find dismissal is warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).

The final factor to consider, Factor 5, is the effectiveness of sanctions other than

dismissal. Plaintiff’s failure to communicate with the Court and to comply with the Court’s

orders, which have prevented this case from proceeding, indicates that Plaintiff has no serious

interest in pursuing this case. It therefore appears that dismissal is the most appropriate action

for the Court to take. Mindek v. Rigatti, 964 F.2d at 1373. Accordingly, it is respectfully

recommended that the Third Amended Complaint filed in the above-captioned case, ECF No. 63,

be dismissed for failure to prosecute.

In accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(B) & (C), and Local

Rule 72.D.2, Plaintiff is permitted to file written objections and responses thereto in accordance

with the schedule established in the docket entry reflecting the filing of this Report and

Recommendation. Objections are to be submitted to the Clerk of Court, United States District

Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will

constitute a waiver of any appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d

Cir. 2011). Any party opposing objections may file their response to the objections within

fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.

Respectfully submitted,

/s/ Maureen P. Kelly

MAUREEN P. KELLY

CHIEF UNITED STATES MAGISTRATE JUDGE

Dated: August 14, 2018

cc: The Honorable Cathy Bissoon

United States District Judge

Vernon L. Brown

411 Delaware Avenue

Unit 1B

Rochester, PA 15074

Vernon L. Brown

P.O. Box 6814

Pittsburgh, PA 15212