Opinion
Civil Action 2:23-cv-1831
08-02-2024
EMMANUEL O. FAYEMI, Plaintiff, v. RODNEY WALTERS, JOHN R. WALTON, BRAD TOMASELLO, MICHAEL SPRINGER, and WESTMORELAND COUNTY PRISON, Defendants.
Emmanuel O. Fayemi Scott E. Aviolio Aviolio Law Group, LLC
Emmanuel O. Fayemi
Scott E. Aviolio Aviolio Law Group, LLC
W. Scott Hardy, United States District Judge
The case was reassigned to the undersigned on July 3, 2024. See Administrative Order 2024-07, No. 2: 24-mc-10001.
CHRISTOPHER B. BROWN UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Complaint (ECF No. 8) be dismissed with prejudice based on Plaintiff's failure to prosecute this action. Alternatively, the Defendants' Motion to Dismiss (ECF No. 14) should be granted as the claims in the Complaint are time-barred.
II. Report
On October 18, 2023, Plaintiff, Emmanuel O. Fayemi, filed a civil rights action against Correctional Officer Rodney Walters, Former Warden John R. Walton, Former Lieutenant Brad Tomasello, Former Sergeant Michael Springer, and the Washington County Prison. Through the Complaint, Fayemi alleges that “somewhere between August 15th - 23rd, 2020,”
The undersigned has applied the “prisoner mailbox rule,” and deemed the Complaint filed on the date the documents were signed by Fayemi and presumably “delivered to the prison authorities for forwarding to the court clerk.” Bond v. VisionQuest, 410 Fed.Appx. 5101, 514 (3d Cir. 2011); Houston v. Lack, 487 U.S. 266, 275-76 (1988). Although this rule has typically been applied in circumstances involving habeas petitions, courts within the Third Circuit have extended this rule to other contexts, including § 1983 claims. See White v. Pa. State Police, 408 Fed.Appx. 521, 522 (3d Cir. 2010) (finding that a prisoner receives the benefit of the mailbox rule for a § 1983 complaint).
[Fayemi] was being escorted back from booking to the SHU, along with several other inmates. Upon returning to the SHU C.O. Walters stepped towards me and asked me to turn around so he could remove the cuffs and shackles. C.O. Walters then slammed me and proceeded to choke me while I was still handcuffed and shackled. C.O. [Walters] claims that he slammed me because I threatened to kick him and attack him while I was handcuffed and shackled.Pl's Complaint, p. 6 (ECF No 8). Fayemi describes his physical injuries as a “busted lip, bruises to [his] wrist and ankles. Along with a sore neck and marks on my neck.” Id. He brings the lawsuit pursuant to 42 U.S.C. § 1983 claiming that his rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated and is seeking damages in the amount of $1,500,000.00. The Court has jurisdiction over Fayemi's claims pursuant to 28 U.S.C. § 1331.
A. Dismissal is appropriate based on Fayemi's failure to prosecute
Defendants have moved to dismiss Fayemi's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 14. Fayemi was ordered to file either a response to the motion to dismiss or an Amended Complaint by May 30, 2024. (ECF No. 17).
Fayemi failed to comply with the response order and on June 7, 2024, the Court issued an Order to Show Cause directing him to explain his failure to comply or, in the alternative, to file a response to the motion to dismiss or an Amended Complaint by June 28, 2024. (ECF No. 20). He was further admonished that his failure to respond may result in this matter being dismissed for a failure to prosecute. Id. To date, Fayemi has failed to comply with the Order to Show Cause or to otherwise indicate that he wishes to proceed with this action. Fayemi was served with the scheduling order and the Order to Show Cause at his listed address of record - the Washington County Jail. On 7/31/2024, the Washington County Jail returned to the Court the unopened envelope containing the Order to Show Cause with the notation that Fayemi had been released from custody on 3/22/2024. See restricted Staff Note dated 7/31/2024.
The Show Cause Order was issued by Chief Magistrate Judge Richard A. Lanzillo.
Punitive dismissal of an action for failure to comply with court orders is left to the discretion of the court. Somerville v. Finney, 2021 WL 2941662, at *2 (W.D. Pa. July 13, 2021) (citing 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, 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 weigh in favor of dismissal of the instant action. Factors 1, 3, and 4 all relate to Fayemi's failure to comply with this Court's orders so that the case may proceed and weigh heavily against him. See e.g., Somerville, 2021 WL 2941662, at *2. Additionally, Fayemi's failure to apprise the Court of a change of address as required further demonstrates to the undersigned that Fayemi clearly has lost interest in pursuing this action any further. With respect to the second factor - the prejudice caused to the adversary by Fayemi's failure to comply with this Court's orders - there appears to be no specific prejudice to Defendants other than general delay and the expense of filing a motion seeking dismissal of the case. Factor No. 6 - the meritoriousness of the claim -weighs neither for nor against dismissal. Fayemi's ongoing failure to respond to Defendants' motion to dismiss limits the Court's assessment of the merits of Fayemi's claims. 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 is the effectiveness of sanctions other than dismissal. There are no alternative sanctions that would adequately address Fayemi's failure to respond to Defendants' motion. Imposing a monetary sanction would not be effective as Fayemi appears to be impecunious. See Order Granting Leave to File in forma pauperis. (ECF No. 7). Moreover, failure to comply with the Court's order has prevented this Court from proceeding and indicates that Fayemi has no serious interest in pursuing this case. It therefore appears that dismissal is the most appropriate action in response to Fayemi's repeated noncompliance. Mindek, 964 F.2d at 1373.
B. Alternatively, the Motion to Dismiss should be granted as the claims in the Complaint are time-barred
In Pennsylvania, the applicable statute of limitations under 42 U.S.C. § 1983 is two years. Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000). Fayemi's allegations against the Defendants arise from an incident that occurred “somewhere between August 15th - 23rd, 2020.” Giving Fayemi the benefit of the prisoner mail-box rule, the Complaint was filed on October 18, 2023. Defendants argue that the Complaint should be dismissed for failure to comply with the two-year statute of limitations. It is clear that the allegations against the Defendants are time barred by the applicable two-year statute of limitations. Thus, it is recommended that the motion to dismiss be granted.
III. Conclusion
For all these reasons, it is recommended that the instant Complaint be dismissed with prejudice for failure to prosecute. Alternatively, it is recommended that the Motion to Dismiss, ECF No. 14, be granted.
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, Fayemi, because he is a non-electronically registered party, must file written objections, if any, to this Report and Recommendation by August 22, 2024. Defendants, because they are electronically registered parties, must file objections, if any, by August 19, 2024. 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, 194 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).