Opinion
CIVIL 3:23-CV-1225
01-25-2024
MICHAEL CAMPBELL, Plaintiff v. JOSEPH JULIAN, et al., Defendants.
Mariani, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Factual Background
This is a pro se prisoner lawsuit brought by Michael Campbell, a state inmate, against four Pennsylvania State troopers arising out of two law enforcement encounters in July and September of 2021. (Doc. 1). In his complaint Campbell alleges that the actions of the troopers violated his rights under the Fourth, Eighth and Fourteenth Amendments to the United States Constitution, and constituted torts under Pennsylvania common law. (Id.) On September 29, 2023, the defendants moved to dismiss this complaint. (Doc. 10). The defendants timely filed a brief in support of this motion, but Campbell never responded to this outstanding motion.
On November 2, 2023, this case was referred to the undersigned. Upon review, we noted that Campbell had not responded to the motion to dismiss. Accordingly, on November 8, 2023, we ordered Campbell to respond to this motion on or before November 22, 2023. (Doc. 12). This order also warned Campbell in clear and precise terms that the failure to respond to the motion could result in the motion being deemed unopposed and granted. (Id.)
When Campbell failed to respond to this motion to dismiss, given Campbell's failure to litigate the case which he has filed on December 4, 2023, we recommended that this case be dismissed. (Doc. 14). Campbell then filed a request for extension of time in which to respond, (Doc. 14), which we granted, directing the plaintiff to respond on or before December 22, 2023. (Doc. 15).
Once again, Campbell has failed to respond to this court order. Moreover, correspondence addressed to Campbell has been returned as undeliverable. (Doc. 16). As a pro se litigant the plaintiff's failure to maintain an address where he can be reached itself violated the rules of this court; specifically, Local Rule 83.18, which provides that:
LR 83.18 Appearance of Parties Not Represented by Counsel.
Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action, such party 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.
Therefore, in addition to his failure to respond to this pending motion, Campbell now is also in violation of the Local Rules of this court which require him to maintain an address where the court can contact the plaintiff, and we lack the ability to communicate with this litigant. The plaintiff's cascading non-compliance with the rules of this court now stymies any efforts to litigate his claims. Accordingly, for the reasons set forth below, it is recommended that this case be dismissed.
II. Discussion
A. Under The Rules of This Court The Plaintiff Should Be Deemed to Have Abandoned the Lawsuit and the Defense Motion Should Be Deemed Unopposed and Granted .
Under the Local Rules of this Court, the plaintiff should be deemed to have abandoned this lawsuit by failing to provide the court with an address where he can be reached, a direct violation of Local Rule 83.18. The plaintiff's ongoing violation of Local Rule 83.18 permits the court to find that he has abandoned this litigation. In this circumstance, dismissal of this action for failure to abide by court orders or the rules of this court, and failure to prosecute, is fully justified. See, e.g., Juaquee v. Pike County Corr. Facility Employees, 3:12-CV-1233, 2013 WL 432611 (M.D. Pa. Feb. 1,2013); Kuhn v. Capitol Pavilion, 1:11-CV-2017, 2012 WL 5197551 (M.D. Pa. Oct. 19, 2012); Educ. Mgmt. Services, Inc. v. Pennsylvania, 1:10-CV-00441, 2012 WL 2389874 (M.D. Pa. June 25, 2012); Olguin v. Burgerhoff, 1:12-CV-0003, 2012 WL 1580935 (M.D. Pa. May 4, 2012); Nowland v. Lucas, 1:10-CV-1863, 2012 WL 10559 (M.D. Pa. Jan. 3, 2012); Binsack v. Lackawanna County Dist. Attorney's Office, 3:08-CV-1166, 2011 WL 5840314 (M.D. Pa. Nov. 21, 2011); Washington v. Columbia County Prison, 3:CV-10-45, 2011 WL 98547 (M.D. Pa. Jan. 12, 2011).
In this case, the plaintiff has failed to comply with Local Rule 83.18 by providing an address where we can communicate with this litigant. If we cannot communicate with Campbell, it will be impossible to litigate this case. Therefore, this failure now compels us to apply the sanction called for under Rule 83.18 and deem the plaintiff to have abandoned this litigation.
In addition, under the Local Rules of this Court the plaintiff should be deemed to concur in this motion to dismiss, since the plaintiff has failed to timely oppose the motion or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion and, under the rules of this Court, warrants dismissal of the action. Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service
of the movant's brief.Local Rule 7.6 (emphasis added).
It is now well settled that “Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with the [R]ule after a specific direction to comply from the court.'” Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, at *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)). In this case, the plaintiff has not complied with the local rules, or this Court's order, by filing a timely response to this motion. Therefore, these procedural defaults by the plaintiff compel the court to consider:
[A] basic truth: we must remain mindful of the fact that “the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion ....” McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998).Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by the rules when such rules are repeatedly breached, “would actually violate the dual mandate which guides this Court and motivates our system of justice: ‘that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion. '” Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the plaintiff has failed to comply with Local Rule 7.6 by filing a timely response to this motion. This failure now compels us to apply the sanction called for under Rule 7.6 and deem the motion to be unopposed.
B. Dismissal of this Case Is Warranted Under Rule 41.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: “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.” Fed.R.Civ.P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court, and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, however, while broad is governed by certain factors, commonly referred to as Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following 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 and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).Emerson, 296 F.3d at 190.
In exercising this discretion, “there is no ‘magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute.” Lopez v. Cousins, 435 Fed.Appx. 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, “[i]n balancing the Poulis factors, [courts] do not [employ] a . . . ‘mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case.” Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)). Consistent with this view, it is well settled that “‘no single Poulis factor is dispositive,' [and it is] clear that ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint. '” Id. (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Mindek, 964 F.2d at 1373). Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the Court of Appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson, 296 F.3d 184; Tillio v. Mendelsohn, 256 Fed.Appx. 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 Fed.Appx. 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 Fed.Appx. 728 (3d Cir. 2007).
In this case, a dispassionate assessment of the Poulis factors weighs heavily in favor of dismissing this action. At the outset, a consideration of the first Poulis factor, the extent of the party's personal responsibility, shows that the failure to respond to this motion is entirely attributable to the plaintiff, who has failed to abide by court orders or submit a brief in opposition to this motion to dismiss.
Similarly, the second Poulis factor- the prejudice to the adversary caused by the failure to abide by court orders-also calls for dismissal of this action. Indeed, this factor-the prejudice suffered by the party seeking sanctions-is entitled to great weight and careful consideration. As the Third Circuit has observed:
“Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment.” Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir. 1994) (internal quotation marks and citation omitted). 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.” Id. at 874 (internal quotation marks and citations omitted).... However, prejudice is not limited to “irremediable” or “irreparable” harm. Id.; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Curtis T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir. 1988). It also includes “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware, 322 F.3d at 222.Briscoe, 538 F.3d at 259-60.
In this case, the plaintiff's failure to litigate this claim, or to comply with court orders, now wholly frustrates and delays the resolution of this action. In such instances, the defendant is plainly prejudiced by the plaintiff's continuing inaction and dismissal of the case clearly rests in the discretion of the trial judge. Tillio, 256 Fed.Appx. 509 (failure to timely serve pleadings compels dismissal); Reshard, 256 Fed.Appx. 506 (failure to comply with discovery compels dismissal); Azubuko, 243 Fed.Appx. 728 (failure to file amended complaint prejudices defense and compels dismissal).
When one considers the third Poulis factor-the history of dilatoriness on the plaintiff's part-it becomes clear that dismissal of this action is now appropriate. In this regard, it is clear that “‘[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response . . ., or consistent tardiness in complying with court orders.'” Briscoe, 538 F.3d at 260-61 (quoting Adams, 29 F.3d at 874) (some citations omitted). Here, the plaintiff has failed to comply with court orders or file a brief in opposition to this motion to dismiss as directed. Thus, the plaintiff's conduct displays “[e]xtensive or repeated delay or delinquency [and conduct which] constitutes a history of dilatoriness, such as consistent non-response . . ., or consistent tardiness in complying with court orders.” Adams, 29 F.3d at 874.
The fourth Poulis factor-whether the conduct of the party or the attorney was willful or in bad faith-also cuts against the plaintiff in this case. In this setting, we must assess whether this conduct reflects mere inadvertence or willful conduct, in that it involved “strategic,” “intentional or self-serving behavior,” and not mere negligence. Adams, 29 F.3d at 875. At this juncture, when the plaintiff has failed to comply with instructions of the Court, we are compelled to conclude that the plaintiff's actions are not isolated, accidental, or inadvertent but instead reflect an ongoing disregard for this case and the Court's instructions.
While Poulis also enjoins us to consider a fifth factor, the effectiveness of sanctions other than dismissal, cases construing Poulis agree that in a situation such as this case, where we are confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Briscoe, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. This case presents such a situation where the plaintiff's status as a pro se litigant severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. In any event, by entering our prior orders and counseling the plaintiff on his obligations in this case, we have endeavored to use lesser sanctions, but to no avail. The plaintiff still ignores his responsibilities as a litigant. Since lesser sanctions have been tried, and have failed, only the sanction of dismissal remains available to the Court.
Finally, under Poulis, we are cautioned to consider one other factor, the meritoriousness of the plaintiff's claims. In our view, however, consideration of this factor cannot save this particular plaintiff's claims, since the plaintiff is now wholly non-compliant with the court's instructions. The plaintiff cannot refuse to comply with court orders which are necessary to allow resolution of the merits of his claims, and then assert the untested merits of these claims as grounds for declining to dismiss the case. Furthermore, it is well settled that “‘no single Poulis factor is dispositive,' [and it is] clear that ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint.'” Briscoe, 538 F.3d at 263 (quoting Ware, 322 F.3d at 222; Mindek, 964 F.2d at 1373). Therefore, the untested merits of the non-compliant plaintiff's claims, standing alone, cannot prevent dismissal of a case for failure to prosecute.
In any event, we note that a number of Campbell's claims appear to fail on their merits, yet another factor which favors dismissal of this complaint. At the outset, Campbell's state law tort claims all fail. Under Pennsylvania law, the Commonwealth, its agencies and employees enjoy broad immunity from most state-law tort claims, as the General Assembly has, by statute, provided that “the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.” 1 Pa. Cons. Stat. § 2310; see also Moore v. Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988) (“In other words, if the Commonwealth is entitled to sovereign immunity under Act 152, then its officials and employees acting within the scope of their duties are likewise immune”). This grant of immunity “applies to Commonwealth employees in both their official and individual capacities, so long as the employees are ‘acting within the scope of their duties.'” Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008). Conduct of an employee is within the scope of employment if “‘it is of a kind and nature that the employee is employed to perform; [and] it occurs substantially within the authorized time and space limits . . . .'” Brautigan v. Fraley, 684 F.Supp.2d 589, 593-94 (M.D. Pa. 2010); see also Faust v. Dep't of Revenue, 592 A.2d 835 (1991) (holding that a Commonwealth employee was protected under sovereign immunity from liability from intentional acts which caused emotional distress when he was acting within the scope of his duties). Thus, so long as the agent or employee is acting within the scope of his employment, and none of the nine recognized statutory exceptions apply,sovereign immunity will bar any state law claims against him.
In 42 Pa. Cons. Stat. § 8522(b), the General Assembly defined nine separate, narrow exceptions to the broad grant of sovereign immunity. These exceptions include: (1) vehicle liability; (2) medical-professional liability; (3) care, custody, or control of personal property; (4) Commonwealth real estate, highways, and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody, or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. “Because of the clear intent to insulate government from exposure to tort liability, the exceptions to immunity are to be strictly construed.” Lockwood v. City of Pittsburgh, 561 Pa. 515, 751 A.2d 1136, 1139 (Pa. 2000) (citation omitted).
In particular, as this Court has noted in the past:
Pennsylvania courts have consistently found sovereign immunity
applies to intentional torts. See La Frankie, 618 A.2d at 1149; see also Stone v. Felsman, No. 3:10-CV-0442, 2011 WL 5320738 at *11 (M.D. Pa. Nov.1, 2011) (finding state law claims of assault, battery, false arrest, false imprisonment and malicious prosecution are barred by sovereign immunity); Fischer v. Pa. State Police, No. 4:07-CV-1653, 2009 WL 650251 at *12 (M.D. Pa. March 10, 2009) (holding claim of intentional infliction of emotional distress against Pennsylvania State Police is barred by sovereign immunity).Luck v. Asbury, No. 3:12CV0887, 2013 WL 433536, at *4 (M.D. Pa. Feb. 5, 2013). Therefore, “[a]s a general matter, subject only to nine specific statutory exceptions, this sovereign immunity bars state law tort claims like those alleged here, since Commonwealth employees are immune from liability for either negligence or intentional torts.” Colon v. Kenwall, No. 1:18-CV-840, 2018 WL 5809863, at *6 (M.D. Pa. Nov. 6, 2018) (citations omitted). Therefore, these state tort claims fail on their merits and should be dismissed.
Nor can Campbell maintain an Eighth Amendment claim against the police officers. Campbell's Eighth Amendment claim, which arises in the context of two highway encounters with police, fails for a single, simple reason. The Eighth Amendment's prohibition against cruel and unusual punishments does not apply until “after sentence and conviction.” Graham v. Connor, 490 U.S. 386, 392 n.6 (1989). Because Campbell was not a convicted prisoner at the time of these traffic stops, the Eighth Amendment simply does not apply to the facts alleged in his complaint. Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005) (citing Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987)).
Likewise, on these facts Campbell's general Fourteenth Amendment claim runs afoul of the more specific provision rule. As we have observed:
The more-specific provision rule states that “if a constitutional claim is covered by a specific constitutional provision ... the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (citing Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Third Circuit has expressly adopted this rule for cases involving Fourteenth Amendment substantive due process claims brought in combination with claims of other constitutional violations that challenge the same conduct. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 261 (3d Cir. 2010); see also Piazza v. Lakkis, 2012 WL 2007112, at *5-6 (M.D. Pa. June 5, 2012) (Caputo, J.).Pizarro v. Wetzel, No. 3:20-CV-00511, 2021 WL 4860774, at *4 (M.D. Pa. Oct. 19, 2021). Here, Campbell's claims seemingly fall within the ambit of the more specific provisions of the Fourth Amendment. Therefore, this more general Fourteenth Amendment claim also fails as a matter of law and should be dismissed.
In sum, all of the Poulis factors currently appear to favor dismissal of this complaint since Campbell had declined to litigate this case, or comply with court orders, and many of his claims fail on their merits. Therefore, we recommend that the motion to dismiss be granted. Recognizing that the state law claims, and related Eighth and Fourteenth Amendment claims fail on their merits, it is recommended that these claims be dismissed with prejudice. As for Campbell's Fourth Amendment claim, which was not directly addressed in the motion to dismiss, in light of the plaintiff's failure to comply with court orders or otherwise litigate this case it is recommended that this claim be dismissed without prejudice.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that this case be DISMISSED for failure to prosecute and that the defendants' motion to dismiss, (Doc. 10), should be GRANTED. Specifically, recognizing that the state law claims, and related Eighth and Fourteenth Amendment claims set forth in the complaint fail on their merits, it is recommended that these claims be dismissed with prejudice. As for Campbell's Fourth Amendment claim, which was not directly addressed in the motion to dismiss, in light of the plaintiff's failure to comply with court orders or otherwise litigate this case it is recommended that this claim be dismissed without prejudice.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.