Opinion
CIVIL 1:21-CV-01858
10-25-2022
WALTER M. HEINBACH, Plaintiff, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al., Defendants.
RAMBO, JUDGE
REPORT AND RECOMMENDATION
SUSAN E. SCHWAB, UNITED STATES MAGISTRATE JUDGE
I. Introduction.
Plaintiff Walter M. Heinbach contends that the defendants violated his rights by incarcerating him beyond the expiration of his maximum sentence. Currently pending is the defendants' motion to dismiss Heinbach's amended complaint. Heinbach has not responded to that motion. Nor has he responded to an order to show cause issued by the court. Analysis of the applicable factors lead to the conclusion that Heinbach has abandoned this action and that the case should be dismissed based on Heinbach's failure to prosecute this action.
II. Background and Procedural History.
Heinbach, who is proceeding pro se, began this action by filing a complaint. See doc. 1. After a telephone conference with the parties, the undersigned issued an order granting Heinbach leave to file an amended complaint and setting forth some basic pleading standards for Heinbach's benefit. See doc. 18. Heinbach later filed an amended complaint, naming as defendants (1) the Pennsylvania Board of Probation and Parole (“Board”); (2) Kevin Ransom, the Superintendent of the State Correctional Institution at Dallas (“SCI Dallas”); (3) the Pennsylvania Department of Corrections (“DOC”); (4) George M. Little, the Secretary of the DOC; and (5) Bernadette Amrowski, a records supervisor at SCI-Dallas. Alleging that he did not receive proper time credit toward his sentence, Heinbach contends that the defendants incarcerated him past the expiration of his maximum sentence. He asserts that defendants Ransom and Little were informed, by way of his habeas corpus action, that he was due time credit toward his sentence. He also asserts that the records department at SCI Dallas knew of his excessive confinement.
Although it is not clear to what Heinbach is referring when he refers to his habeas corpus action, it appears that he may be referring to his Post Conviction Relief Act proceedings, in which he challenged the calculation of his sentence. See Commonwealth v. Heinbach, No. 222 MDA 2021, 2022 WL 484178, at * 1 (Pa. Super. Ct. Feb. 17, 2022). The Superior Court affirmed the denial of his PCRA petition. Id. And on August 3, 2022, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Heinbach, No. 134 MAL 2022, 2022 WL 3053295, at *1 (Pa. Aug. 3, 2022).
Heinbach attached to his amended complaint some documents relating to the calculation of his sentence. Of note, he attached a Notice of Board Decision from the Board that states that his parole violation maximum date is May 20, 2022. See doc. 19 at 15. And in his amended complaint, Heinbach provides his address for after his release on May 20, 2022. See id. at 2. Heinbach is seeking damages for all the days he was detained past his maximum sentence.
On June 3, 2022, the defendants filed a motion to dismiss the amended complaint and a brief in support of that motion. They argue the Heinbach's claims are barred by the favorable-termination rule of Heck v. Humphrey, 512 U.S. 477 (1994). The Board and the DOC also argue that the claims against them should be dismissed because they are not persons subject to suit under 42 U.S.C. § 1983. And defendants Ransom, Little, and Amrowski also argue that the claims against them should be dismissed because they were not personally involved in the alleged violation of Heinbach's rights and because the amended complaint fails to state a claim for over detention in violation of the Constitution.
Heinbach was ordered to file a brief in opposition to the defendants' motion to dismiss on or before June 28, 2022. See doc. 25. He sought and was granted an extension of time until July 28, 2022, to file his brief in opposition. See docs. 26, 27. Nevertheless, Heinbach did not file a brief in opposition. By an order dated August 19, 2022, Heinbach was ordered to show cause on or before September 15, 2022, why this action should not be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. See doc. 28. Heinbach was also warned that if he were to fail to show cause, he may be deemed to have abandoned this lawsuit and the case may be dismissed. Id. Heinbach has not responded to this show cause order.
III. Discussion.
A. Under the rules of this court, Heinbach should be deemed not to oppose the defendants' motion.
At the outset, under the Local Rules of this court, Heinbach should be deemed not to oppose the defendants' motion to dismiss since he has failed to oppose that motion.
Local Rule 7.6 imposes an affirmative duty on a litigant to respond to motions and provides that “[a]ny party who fails to comply with this rule shall be deemed not to oppose such motion.” M.D. Pa. L.R. 7.6. At the time the case was filed, Heinbach received excerpts of some of the court's local rules, which excerpts set forth his obligations with respect to responding to motions. See doc. 4.
In this case, Heinbach has not complied with Local Rule 7.6. Nor has he shown cause, after being ordered to do so, why this case should not be dismissed. These procedural defaults compel us 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. ...Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010) (quoting McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)). With this basic truth in mind, a fundamental guiding tenet of our legal system must be acknowledged. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the 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, the court is 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.
Such basic principles of fairness apply here. In this case, Heinbach failed to comply with Local Rule 7.6 by failing to file a brief in opposition to the pending motion to dismiss. Nevertheless, Heinbach's failure to file a brief in opposition alone is not sufficient for the court to dismiss the case. In Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991), the Third Circuit reversed a district court's dismissal based on the pro se plaintiff's failure to file a brief in accordance with a local rule of court. The Third Circuit stated that failure to obey the local rule should not form the basis for dismissal without an analysis of the merits of the case. Id. at 30. It noted that dismissal was not to be ruled out if the party was represented by an attorney and in fact did not oppose the motion. Id. It also noted: “Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked. Thus, our holding is not broad.” Id. at 30.
Although this caveat from the Stackhouse case might suggest that the court could grant the pending motion based on Heinbach's failure to file a brief in opposition after being ordered show cause why the court should not dismiss the action, the Third Circuit has subsequently declined “to adopt an interpretation of Stackhouse under which a district court may dismiss a case solely because a plaintiff misses a briefing deadline set forth in a local rule or court-ordered briefing schedule.” Hernandez v. Palakovich, 293 Fed.Appx. 890, 895 (3d Cir. 2008). Rather, the Third Circuit has held that before dismissing a case as a sanction for failure to follow a court rule or court order, a court must consider the factors set forth in the seminal Poulis case. Id. at 894 (citing Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984)); see also Shuey v. Schwab, 350 Fed.Appx. 630, 633 (3d Cir. 2009) (“Poulis has been cited too often and is too deeply ingrained in the jurisprudence of this court and the district courts of this circuit for a court to assume that a party's failure to respond to a motion to dismiss can be regarded as an abandonment of the claim. Poulis governs the District Court's decision to dismiss the Shuey's claim, and it was error to dismiss without first considering the Poulis factors.”). Thus, the Poulis factors will be considered.
B. Consideration of the Poulis factors warrants dismissal of this case.
Heinbach has failed to prosecute this action, and in fact, he has abandoned this action. Thus, it is recommended that the court dismiss this action pursuant to Fed.R.Civ.P. 41(b).
The court may dismiss an action under Fed.R.Civ.P. 41(b) if the plaintiff fails to prosecute a case or to comply with court rules or court orders. Even though dismissal is an available sanction, it is a drastic sanction that “should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). In other words, “cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019).
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). But that discretion, while broad, is governed by the following factors, commonly referred to as the Poulis factors, which the Court must balance in deciding whether to dismiss a case:
(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, 747 F.2d at 868. “The court should consider all six factors but need not find all six to award sanctions.” United States v. Brace, 1 F.4th 137, 143 (3d Cir. 2021). And no single factor is dispositive. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). In this case, an assessment of the Poulis factors leads to the conclusion that this action should be dismissed.
The first Poulis factor is the extent of the party's personal responsibility. A pro se litigant is personally responsible for failure to comply with the Court's rules and orders. In this case, because Heinbach is proceeding pro se, he is responsible for his failure to litigate this case.
The second Poulis factor is prejudice to the adversary. Examples of prejudice are “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.” Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). “[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Id. In this case, Heinbach's failure to litigate this case and comply with court rules frustrates and delays resolution of this action, and so, such failure to litigate can be seen to prejudice the defendants, who seek a timely resolution of the case.
The third Poulis factor is a history of dilatoriness. While “conduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness,'” Briscoe, 538 F.3d at 261, “[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[,]” Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). A “party's problematic acts must be evaluated in light of [his] behavior over the life of the case.” Id. at 875. In this case, Heinbach has a history of dilatoriness. He failed to file a brief in opposition to the motion to dismiss. Moreover, he failed to do so, or explain why he failed to do so, even though the court ordered him to show cause why this case should not be dismissed. And this even after the court noted that if he failed to show cause, he may be deemed to have abandoned this action. Thus, Heinbach has a history of dilatoriness.
The fourth Poulis factor is whether the conduct was willful or in bad faith. “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Here, Heinbach failed to respond to the motion to dismiss or to the show cause order of the court. These failures lead to an inference that Heinbach has willfully abandoned this case.
The fifth Poulis factor is the effectiveness of alternate sanctions. Dismissal is a sanction of last resort, and it is incumbent upon a court to explore the effectiveness of lesser sanctions before ordering dismissal. Poulis, 747 F.2d at 868. Heinbach is proceeding pro se and in forma pauperis, and there is no evidence to support a reasonable inference that he would be able to pay monetary sanctions. Therefore, monetary sanctions, including attorney's fees and costs, would not be an effective sanction in this case. Moreover, Heinbach's failure to prosecute this action even in the face of an order to show cause leads to an inference that further orders to him would not be effective. In this case, no sanction short of dismissal would be effective.
The sixth and final Poulis factor is the meritoriousness of the claim. In this inquiry, a claim will be deemed meritorious when the allegations of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. Here, the defendants have filed a motion to dismiss raising several strong arguments in support of dismissal. Nevertheless, assuming for the sake of argument that Heinbach's claims are meritorious, consideration of this factor cannot save Heinbach's case, since he is now wholly noncompliant with his obligations as a litigant, and the case cannot reasonably proceed without his participation.
In sum, the Poulis factors weigh in favor of dismissal. Heinbach, who was released from prison in May of this year, has abandoned this case. Thus, it will be recommended that the court dismiss the case pursuant to Fed.R.Civ.P. 41(b). And in light of that recommendation, it will also be recommended that the court dismiss the pending motion to dismiss as moot. See Risher v. Wetzel, No. 3:17-CV-1659, 2020 WL 618655, at *1 (M.D. Pa. Feb. 10, 2020) (dismissing action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and dismissing pending motion for summary judgment); Ivanitch v. Dunkin Donuts, No. CV 3:18-1783, 2019 WL 5884637, at *2 (M.D. Pa. Nov. 12, 2019) (dismissing action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and dismissing pending motion to dismiss as moot).
IV. Recommendation.
Based on the foregoing and given that Heinbach has abandoned this action, it is recommended that the court dismiss this action in accordance with Fed.R.Civ.P. 41(b), and that the court dismiss as moot the pending motion to dismiss (doc. 23).
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.