YARBROUGH v. BAKEWELL et al

IN THE UNITED STATES DISTRICTT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARK YARBROUGH, SR., 	)
)
Plaintiff, 	)
)
v. 	)
)
OFFICER W BAKEWELL, ET AL., 	)
)
Defendants. 	)
Civil Action No. 23-342
District Judge Robert J. Colville
Magistrate Judge Kezia O. L. Taylor
ECF No. 93
REPORT AND RECOMMENDATION
I. 	RECOMMENDATION
For the following reasons, it is respectfully recommended that this case be dismissed with
prejudice for Plaintiff’s failure to prosecute insofar as Plaintiff has failed to comply with this
Court’s Order to Show Cause, which expressly advised that this case could be dismissed should
Plaintiff fail to respond to Defendants’ motion for summary judgment by November 7, 2025.
II. 	REPORT
A. Procedural History
Plaintiff Mark Yarbrough, Sr. (“Plaintiff Yarbrough”) brings this civil rights action against
Charleroi Regional Police officers, Officer W. Bakewell and Officer Ramsdell (collectively
“Defendants”). 	ECF Nos. 7, 7-1 and 7-2. 	On October 10, 2023, Defendants filed a motion to
dismiss, and in the alternative, motion for a more definite statement. ECF Nos. 27, 28. On January
8, 2024, Plaintiff filed his response. ECF No. 41. On April 19, 2024, this Court issued a Report
and Recommendation, recommending that Defendants’ motion for a more definite statement be
denied, but recommending that the motion to dismiss be granted as to any Fourth Amendment
claim relating to unreasonable search and seizure, Fifth Amendment claim, Eighth Amendment
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claim, and Fourteenth Amendment claim. See ECF No. 54.1 Defendants filed timely objections
that were overruled, and on July 8, 2024, the Report and Recommendation was adopted as the
Opinion of the Court. ECF Nos. 55, 60. Following a period of discovery, Defendants moved for
summary judgment. ECF No. 93. Plaintiff was directed to respond to the summary judgment
motion by September 29, 2025. ECF No. 99. Plaintiff failed to comply with the deadline,
prompting this Court to issue a show cause order on October 8, 2025, advising Plaintiff that if he
did not file his response to the pending summary judgment motion by November 7, 2025, his case
could be subject to dismissal for failure to prosecute. ECF No. 100. As of the date of this Report
and Recommendation, no response to Defendants’ summary judgment motion has been filed.
B. Discussion
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of
an action or a claim, and, under this Rule, “a district court has authority to dismiss an action sua
sponte if a litigant fails to prosecute or to comply with a court order.” Qadr v. Overmyer, No. 15-
3090, 642 F. App’x 100, 102 (3d Cir. 2016) (per curiam) (citing Fed. R. Civ. P. 41(b)); see also
Adams v. Trustees of New Jersey Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 871 (3d
Cir. 1994) (“The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule
41(b).”)
The Third Circuit Court of Appeals has stated that “a district court dismissing a case sua
sponte ‘should use caution in doing so because it may not have acquired knowledge of the facts it
needs to make an informed decision.’” Qadr, 642 F. App’x at 103 (quoting Briscoe v. Klaus, 538
F.3d 252, 258 (3d Cir. 2008)). Before engaging in a sua sponte dismissal, “the district court should
1 Defendants failed to seek dismissal of the Fourth Amendment claim relating to excessive force.
Notwithstanding, the Court agreed with the undersigned that Plaintiff alleged sufficient facts to
survive beyond the motion to dismiss stage. ECF No. 60 at 2-3.
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provide the plaintiff with an opportunity to explain his reasons for failing to prosecute the case or
comply with its orders.” Briscoe, 538 F.3d at 258.
Here, by this Court’s Order dated October 8, 2025, Plaintiff was granted until November
7, 2025 to file his response to Defendants’ motion for summary judgment. ECF No. 100. To date,
Plaintiff has failed to comply with this Order or provide any indication of his willingness to
proceed with this litigation.
a. 	The Poulis Factors
In Poulis v. States Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit
Court of Appeals set forth the following six factors to be weighed in considering whether dismissal
is proper under Rule 41(b):
(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. at 868. In balancing the Poulis factors, no single factor is dispositive, nor do all factors need
to be satisfied to result in dismissal of the complaint. 	Briscoe, 538 F.3d at 263. 	However, in
determining whether a dismissal is warranted, the Court must analyze the factors in light of the
“strong policy favoring decisions on the merits.” Hildebrand v. Allegheny Cnty., 923 F.3d 128,
132 (3d Cir. 2019). The Third Circuit has emphasized that “dismissals with prejudice or defaults
are drastic sanctions, termed ‘extreme’ by the Supreme Court,” and they “must be a sanction of
last, not first, resort.” 	Poulis, 747 F.2d at 867-68, 869 (citing Nat’l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 643 (1976)). “[C]ases should be decided on the merits barring
substantial circumstances in support of the contrary outcome.” Hildebrand, 923 F.3d at 132.
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b. 	Application of the Poulis Factors
1. 	The extent of the party’s personal responsibility
“[I]n determining whether dismissal is appropriate, we look to whether the party bears
personal responsibility for the action or inaction which led to the dismissal.” 	Adams, 29 F.3d at
873. 	In determining personal responsibility for the delay, the Court must distinguish “between a
party’s responsibility for delay and counsel’s responsibility.” Hildebrand, 923 F.3d at 133 (citing
Poulis, 747 F.2d at 868). A plaintiff is not conjecturally responsible for her counsel’s delay. Id.
Any doubt as to personal responsibility should be resolved “‘in favor of reaching a decision on the
merits.’” Id. at 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Here, because Plaintiff is proceeding pro se, the responsibility for failing to comply with
orders, including his obligation to respond to the motion filed by Defendants, is his alone. Therefore,
the first factor favors dismissal.
2. 	Prejudice to the adversary
Prejudice to the adversary is a substantial factor in the Poulis analysis; but like any other
factor, it is not dispositive. Hildebrand, 923 F.3d at 134. “Relevant examples of prejudice include
‘the irretrievable loss of evidence[] [and] the inevitable dimming of witnesses’ memories.’” Id.
(quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). A party is not required “to
show ‘irremediable harm’ for the prejudice to weigh in favor of dismissal.” Id. (quoting Ware v.
Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). If the opposition is unable to prepare “a
full and complete trial strategy” then there is sufficient prejudice to favor dismissal. Id. (citation
omitted).
Here, Defendants will be severely prejudiced if the case is permitted to linger in the absence
of activity by Plaintiff. The memory of witnesses will most surely fade with the passage of time.
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Most importantly, Defendants cannot defend claims that are not being pursued by Plaintiff.
Therefore, the second factor favors dismissal.
3. 	A history of dilatoriness
A history of dilatoriness is generally established by repeated “delay or delinquency.”
Adams, 29 F.3d at 874. While once or twice is normally insufficient, this factor weighs in favor
of dismissal where the plaintiff has a history of repeated delay. 	Hildebrand, 923 F.3d at 135
(citation omitted). 	In addition to repeated acts, “extensive” delay can also create a history of
dilatoriness. Adams, 29 F.3d at 874. A “failure to prosecute” does not require that plaintiff take
affirmative “steps to delay the trial …. It is quite sufficient if [he/she] does nothing .… ” Id. at
875 (citation omitted).
“While extensive delay may weigh in favor of dismissal, ‘a party’s problematic acts must
be evaluated in light of its behavior over the life of the case.’” 	Hildebrand, 923 F.3d at 135
(quoting Adams, 29 F.3d at 875). Thus, where a plaintiff has not been previously delinquent the
weight given even a long delay should be mitigated. Id.
Here, Plaintiff has not demonstrated a history of dilatoriness other than failing to comply
with this Court’s show cause order. Thus, the third factor does not weigh in favor of dismissal.
4. 	Whether the party’s conduct was willful or in bad faith
In determining if a plaintiff’s conduct constituted willful or bad faith, the “court should
look for ‘the type of willful or contumacious behavior’ that can be characterized as ‘flagrant bad
faith,’ such as [a case history of] failing to answer interrogatories for nearly a year and a half,
demanding numerous extensions, ignoring admonitions by the court, and making false promises
to correct delays.” 	Id. (citing Scarborough, 747 F.2d at 875 (citation omitted)). 	“Willfulness
involves intentional or self-serving behavior.” 	Adams, 29 F.3d at 875. 	Although “[a] lengthy
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delay reflects ‘inexcusable negligent behavior,’ id. at 876, . . . that behavior alone does not rise to
the level of willfulness or bad faith.” Hildebrand, 923 F.3d at 135.
Finally, “[b]ecause the harsh sanction of dismissal should serve to deter bad faith or self-
serving behavior, and because of our policy of favoring decisions on the merits, [in the absence of
evidence] that the delay was not effectuated willfully or in bad faith, [this factor] should weigh
against dismissal.” Id. at 136.
Here, Plaintiff has willfully ignored this Court’s latest Order directing him to file his
response to Defendants’ motion by November 7th. Therefore, the fourth factor weighs in favor of
dismissal.
5. 	Effectiveness of sanctions other than dismissal
A district court must thoroughly consider “alternative sanctions before dismissing a case
with prejudice.” Id. (citing Briscoe, 538 F.3d at 262). The court should also provide an analysis
of effectiveness sufficient “to honor [the] longstanding tradition of favoring decisions on the
merits.” 	Id. 	In so doing, the court should be mindful that “[a]lternatives are particularly
appropriate when the plaintiff has not personally contributed to the delinquency.” Poulis, 747 F.2d
at 866 (citations omitted). “[A]lternative sanctions need only be effective toward mitigating the
prejudice caused by dilatory behavior or delinquency.” Hildebrand, 923 F.3d at 136. They are
not required to be “completely ameliorative.” Id.
Here, Plaintiff is proceeding in forma pauperis so it is unlikely that any sanction imposing
costs or fees upon him would be effective. Therefore, the Court can see no alternative sanction
that would be appropriate other than dismissal. Accordingly, the fifth factor weighs in favor of
dismissal.
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6. 	Meritoriousness of claim or defense
The standard for determining whether a plaintiff’s claims are meritorious is moderate.
Adams, 29 F.3d at 876. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a
claim, and not a summary judgment standard, is applicable in a Poulis analysis. Id. at 869-70.
The United States Court of Appeals for the Third Circuit summarized the standard to be
applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the
Federal Rules of Civil Procedure, a plaintiff must come forward
with “a short and plain statement of the claim showing that the
pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009), a claimant must state a “plausible” claim for
relief and “[a] claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Although “[f]actual
allegations must be enough to raise a right to relief above the
speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007), a plaintiff “need only put forth allegations that raise a
reasonable expectation that discovery will reveal evidence of the
necessary element.” (Fowler [v. UPMC Shadyside, 578 F.3d 203,
213 (3d Cir. 2009)]); see also Covington v. Int’l Ass’n of Approved
Basketball Officials, 710 F.3d 114, 117-18, (3d Cir. 2013).
Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition, when considering pro se pleadings, a court must employ less stringent
standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519,
520 (1972). 	When presented with a pro se complaint, the court should construe the complaint
liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos
v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are
not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See,
e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83
F.3d 1197, 1202 (10th Cir. 1996).
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Here, in addressing Defendants’ motion to dismiss, the Court determined that Plaintiff’s
Complaint contained sufficient facts to support a plausible Fourth Amendment use of force claim.
ECF No. 60 at 2-3. Because at least one of Plaintiff’s claims was sufficiently pled, and because a
motion to dismiss standard is applicable to a Poulis analysis, this factor does not weigh in favor of
dismissal.
In sum, four of the six Poulis factors weigh in favor of dismissal, such that dismissal is
warranted.
III. 	CONCLUSION
For the above reasons, it is respectfully recommended that this case be dismissed pursuant
to Federal Rule of Civil Procedure 41(b) for failure to prosecute and for failure to comply with this
Court’s Order to Show Case.
In accordance with the Federal Magistrate Judge’s Act, 28 U.S.C. § 636(b)(1)(B) and (C),
and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the
date of service of this Report and Recommendation to file written objections thereto. Any party
opposing such objections shall have fourteen (14) days from the date of service of objections to
respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: December 6, 2025
BY THE COURT
s/Kezia O. L. Taylor
KEZIA O. L. TAYLOR
United States Magistrate Judge
MARK YARBROUGH, SR., QQ4972
SCI LAUREL HIGHLANDS
5706 Glades Pike
P.O. Box 631
Somerset, PA 15501
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