UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

KIMBERLY LYNN WATKINS,

Plaintiff, CIVIL ACTION NO. 3:20-cv-02399

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI,1 Acting Commissioner of Social Security,

Defendant.

MEMORANDUM In this matter, the plaintiff, Kimberly Lynn Watkins, seeks judicial review of the final decision of the Commissioner of Social Security denying her claim for disability insurance benefits, pursuant to

(g). The matter has been referred to the undersigned United States magistrate judge on consent of the parties, pursuant to

(c) and Rule 73 of the Federal Rules of Civil Procedure. This appeal commenced when Watkins, appearing through counsel,

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. She has been automatically substituted in place of the original defendant, Andrew Saul. See Fed. R. Civ. P. 25(d); see also

(g) (action survives regardless of any change in the person occupying the office of Commissioner of Social Security). The caption in this case is amended to reflect this change. lodged her complaint for judicial review on December 21, 2020, together

with an application for leave to proceed in forma pauperis. (Doc. 1; Doc. 2.) On December 23, 2020, we granted leave to proceed in forma pauperis and directed service of process by the United States marshal. (Doc. 4.)

The Commissioner timely filed his2 answer and the administrative transcript on May 14, 2021. (Doc. 16; Doc. 17.) Under our local rules, the plaintiff’s brief in support of her appeal was due 45 days later, on June

28, 2021. See M.D. Pa. L.R. 83.40.4. On July 7, 2021, the plaintiff having filed neither her appeal brief nor a motion for an extension of time, we entered an order sua sponte

granting the plaintiff an extension of time until July 28, 2021, to file her brief, and admonishing her that failure to timely file her brief might result in dismissal of this action under Rule 41(b) of the Federal Rules of

Civil Procedure. (Doc. 17.) On July 12, 2021, counsel for the plaintiff filed a motion to withdraw his appearance on behalf of Watkins (Doc. 18), together with a

supporting declaration with attached exhibits (Doc. 18-1) and a brief in support of the motion (Doc. 19). In these motion papers, counsel

2 At the time, Andrew Saul was still Commissioner. explained that, based on his receipt and review of the administrative

transcript, he had concluded that there was no basis for appeal. Prior to contacting his client, counsel sought and obtained a second opinion from another attorney versed in this area of the law, who reached the same

conclusion that there was no basis for appeal. Counsel wrote to his client to explain his evaluation and to request permission to withdraw this appeal. The client failed to respond until after the date when her brief

was due to be filed, and when she did respond, she declined to withdraw the appeal. Counsel replied and offered to seek a third opinion. He did so, consulting with a third attorney versed in this area of the law, who also

reached the same conclusion that there was no basis for appeal. Counsel conveyed this third opinion to his client as well, renewing his request that she authorize him to withdraw this appeal. This time, however, he

advised Watkins that, due to his ethical obligations, he would necessarily move to withdraw as counsel if she did not agree. She did not. In the interim, we had entered our July 7, 2021, order directing the plaintiff to

file her brief or face possible dismissal. The motion papers further informed the court that, in addition to his ethical reservations with respect to this case in particular, counsel had become increasingly and seriously ill.

On July 13, 2021, we entered an order directing the plaintiff personally to show cause why counsel should not be permitted to withdraw his appearance as counsel of record on her behalf. (Doc. 22.) We

directed the plaintiff to respond in writing by July 27, 2021. The order also vacated our prior order of July 7, 2021. On August 4, 2021, having received no response whatsoever from

the plaintiff, we granted counsel’s motion and permitted him to withdraw as counsel of record. (Doc. 23.) That same day, by separate order, we stayed this appeal for a period of 60 days to afford Watkins an

opportunity to find and retain new counsel to represent her. (Doc. 24.) This second order also directed Watkins to file a status report on her efforts to obtain counsel within 30 days.

On November 3, 2021, the plaintiff having failed to retain new counsel, having failed to file a status report as ordered, and having failed to respond in any other fashion to our orders, we entered an order lifting

the stay and directing the plaintiff to file her pro se brief in support of her appeal by December 3, 2021, or face possible dismissal of this appeal for failure to prosecute. (Doc. 25.) Notwithstanding our order explicitly directing her to do so, Watkins

has failed to file her appeal brief or to otherwise communicate with the court in any fashion. Rule 41(b) of the Federal Rules of Civil Procedure permits a district

court to dismiss an action involuntarily for failure to prosecute or failure to comply with a court order. Fed. R. Civ. P. 41(b). Moreover, this court has inherent power to do so on its own motion, without notice or a

hearing. See Link v. Wabash R.R. Co.,

(1962); Reshard v. Lankenau Hosp., 256 Fed. App’x 506, 507 (3d Cir. 2007); Durkee v. Leicester, No. 07-cv-2104,

, at *1 (M.D. Pa.

July 28, 2008). When considering dismissal under Rule 41(b), a court must balance the following six factors:

(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. Poulis v. State Farm Fire & Cas. Co.,

(3d Cir. 1984) (emphasis in original). In exercising this discretion, there is no “magic formula” or

“mechanical calculation” to determine whether the case should be dismissed. See Briscoe v. Klaus,

(3d Cir. 2008); Mindek v. Rigatti,

(3d Cir. 1992). “While ‘no single Poulis

factor is dispositive,’ we have also made it clear that ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint.’” Briscoe,

(quoting Ware v. Rodale Press, Inc.,

(3d Cir.

2003), and Mindek,

). The first Poulis factor weighs in favor of dismissal. We find the total failure to prosecute this action or to comply with our orders is the fault

of the pro se plaintiff herself, and not the fault of counsel. Shortly after counsel received and reviewed the administrative transcript, he advised her of his opinion that there was no basis for appeal, he conveyed the

concurring second opinion by another attorney he had consulted, and he requested her permission to withdraw the appeal. It was the plaintiff herself who failed to promptly respond to this communication from

counsel, causing her to miss the initial deadline for filing her appeal brief. When counsel filed his motion for leave to withdraw, we entered an order explicitly directing Watkins to personally respond in writing by a date certain to show cause why he should not be allowed to withdraw; she

failed to respond to our order at all. After we granted the motion to withdraw and stayed the appeal for 60 days to permit Watkins to seek and retain new counsel, she failed to comply with our explicit direction to

file a status report on her efforts to secure new counsel. After expiration of the 60-day period, Watkins having failed to secure new counsel or enter her own appearance pro se, we lifted the stay and explicitly directed

Watkins to file her pro se appeal brief by a date certain; she once again failed to respond to our order at all. Watkins has repeatedly failed to comply with our several express orders directing her to respond. Even

during the period when she was represented by counsel, it was her failure to timely communicate with her own attorney that caused her failure to comply with briefing deadlines. Thus, we find the culpability in this

circumstance rests entirely with the plaintiff herself. The second Poulis factor is neutral. “Generally, prejudice 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.’” Briscoe,

. But “prejudice is not limited to ‘irremediable’ or ‘irreparable’ harm. It also includes ‘the burden imposed by impeding a party’s ability to prepare effectively a full

and complete trial strategy.’”

(citations omitted). In this case, however, we are presented with an appeal for judicial review of an administrative decision by a federal agency, which is limited to a static

administrative record containing only evidence that was presented to the agency in underlying administrative proceedings. In this circumstance, we find the plaintiff’s delay has caused no prejudice to the defendant.

The third Poulis factor weighs in favor of dismissal. “[C]onduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness.’” Briscoe,

. But “[e]xtensive or repeated delay

or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders.”

. The plaintiff has repeatedly failed to

comply with our orders directing her to file her brief or otherwise respond to our orders. Moreover, it has now been almost eight months since her appeal brief was originally due to be filed. This conduct constitutes a

pattern of extensive and repeated delay or non-compliance by the plaintiff, militating in favor of dismissal. See Poulis,

. The fourth Poulis factor weighs in favor of dismissal. Under this factor, the District Court must consider whether the conduct was “the type of willful or contumacious behavior which was characterized as flagrant bad faith.” Generally, “willfulness involves intentional or self-serving behavior.” If the conduct is merely negligent or inadvertent, we will not call the conduct “contumacious.” Briscoe,

(quoting Adams v. Trs. of N.J. Brewery Emps.’ Pension Tr. Fund,

(3d Cir. 1994)) (citations and brackets omitted). Here, the plaintiff has failed to comply with no fewer than three court orders, and despite our express admonitions, she has failed to communicate with the court in any manner. The plaintiff having been provided with a full and fair opportunity to respond and move this

litigation forward, the plaintiff having failed utterly to do so, and based on the record before us, we find that the plaintiff has willfully failed to comply with the orders of this court. See Briscoe,

.

The fifth Poulis factor weighs in favor of dismissal. A District Court must consider the availability of sanctions alternative to dismissal. Where an attorney has caused the delay and noncompliance in the proceedings, [the Third Circuit] ha[s] noted that “under the Federal Rules of Civil Procedure and the 1983 amendments, the district court is specifically authorized to impose on an attorney those expenses, including attorneys’ fees, caused by an unjustified failure to comply with discovery orders or pretrial orders.” However, where a plaintiff is proceeding pro se, and moreover, is proceeding in forma pauperis, [the Third Circuit] ha[s] upheld the District Court’s conclusion that no alternative sanctions existed because monetary sanctions, including attorney’s fees, “would not be an effective alternative.”

at 262–63 (quoting Poulis,

, and Emerson v. Thiel Coll.,

, 191 (3d Cir. 2002)) (citations and brackets omitted). Here, because Watkins is proceeding pro se, she has no attorney upon whom this court could impose lesser sanctions for failing to comply with the court’s orders. Because Watkins is indigent, we conclude that monetary

sanctions would not be an effective alternative sanction, particularly in light of her extensive history in this case of noncompliance with court

orders. See Briscoe,

; Emerson, 296 F.3d at 191. The sixth and final Poulis factor weighs in favor of dismissal. We note that the plaintiff’s former counsel advised her that, based on his own

review of the administrative record, she had no basis for appeal. Counsel requested and conveyed second and third opinions by two other social security disability attorneys, both of whom agreed that there was no basis

for appeal. We have reviewed the ALJ’s decision ourselves, and we find no apparent error: the denial of benefits appears to be supported by substantial evidence. In this case, the balance of the Poulis factors favors dismissal. We

recognize that dismissal of a complaint is reserved for the most extreme cases, Poulis, 747 F.2d at 867–68. Nevertheless, we believe this drastic relief is appropriate. Over the course of the better part of a year, the

plaintiff has willfully failed to comply with several court orders directing her to file her appeal brief or otherwise respond to court orders. Indeed, she has completely abandoned this appeal, failing to respond in any

manner to the court’s orders. Given her indigent status and her willful and complete disregard of prior court orders, we find no lesser alternative sanction would be effective.

Accordingly, this appeal will be dismissed for failure to prosecute and failure to comply with numerous court orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

An appropriate order follows.

Dated: March 21, 2022 s/Joseph F. Saporito, Jr. JOSEPH F. SAPORITO, JR. United States Magistrate Judge