Opinion
Civil 1:21-CV-421
12-15-2021
ALFONSO PERCY PEW, Plaintiffs, v. SHARON CLARK, et al., Defendants.
Brann Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge.
I. Factual Background and Procedural History
This case, which comes before us for consideration of a motion to dismiss filed by the defendants (Doc. 45), has an unusual provenance. This lawsuit was initially brought in the name of four pro se inmate plaintiffs-Perry Burris, Shawn Strawn, Edward Wright, and Alfonso Percy Pew. The plaintiffs' complaint, which was removed by the defendants to federal court on March 8, 2021, (Doc. 1), set forth a hodgepodge of individual claims against different parties based upon discrete and disparate events with the only clear common tie between the claims being the fact that the plaintiffs were all D-Code Stability Health inmates housed on BA Unit at SCI Rockview.
Among the unusual aspects of this lawsuit was the fact that from its inception, one prisoner-plaintiff, Alfonso Percy Pew, was filing pleadings on behalf of all of these inmate-plaintiffs. Pew's involvement as the de facto pro se lead counsel in this case is particularly problematic since Pew is a prolific but prodigiously unsuccessful litigant who has been banned from filing cases in his own name in the past due to his own extensive history of frivolous and meritless lawsuits.
Finding that these diverse and disparate claims and parties were misjoined, that Pew could not effectively represent the interests of the other nominal inmate-plaintiffs, and noting that those other inmate-plaintiffs had not responded to court orders, we recommended that inmate-plaintiffs Burris, Strawn, and Wright be dismissed from this case. (Doc. 31). That Report and Recommendation was adopted by the district court, (Doc. 38), leaving Pew as the sole remaining plaintiff in this lawsuit.
Pew then filed an amended complaint, which is the operative pleading in this case. (Doc. 44). This amended complaint shared many of the flaws which have marked Pew's past litigative forays, in that it contains a curious conflation of claims combined with a prolix proliferation of parties.
The flawed nature of the amended complaint is apparent from the outset. In its current form, the amended complaint identified 34 individual, collective, and institutional defendants. These defendants ranged from the Secretary of the Department of Corrections and senior headquarters staff, to various line correctional officers. Moreover, in several instances unnamed correctional collectives, consisting of an entire staff shift at SCI Rockview, were named as group defendants. The amended complaint also sought to sue a sweeping array of private parties including “CCTV owners, Presidents, CEO, CFO [and] shareholders” along with “Global Tel Link Owners.” (Id.)
Having cast the web of putative defendants in this confused, but global, fashion, Pew's factual narrative in support of the amended complaint sets forth a diffuse, disparate, and diverse set of allegations involving divergent events which entail distinct conduct and different actors. (Id.) While the amended complaint demands a great deal of the reader, we discern at least thirteen distinct and unrelated legal claims that have been combined in this pleading. First, Pew's pleading complains about prison work assignments and pay between November 2018 and January 2019. (Id., ¶¶ 82-96, 106-108). Second, Pew alleges that African American heterosexual inmates are discriminated against in terms of cell, housing, and work assignments, and that white, gay, and transgender inmates receive more favorable treatment. (Id., ¶¶ 109-118, 128-130).
Pew then complains about certain amenities in his housing unit, decrying the number of televisions, telephones, and urinals in the housing unit and protesting that due to the lack of convenient seating, inmates must stand up when using the telephone. (Id., ¶¶ 119, 122). Pew's fourth discrete complaint relates to prison corridors which he deems to be too narrow and to pose a fire risk. (Id. ¶131). A fifth field of concern for Pew involves restrictions on television access. (Id., ¶¶ 136-38). This concern, in turn, dovetails into a sixth claim by Pew, an odd First Amendment Freedom of Religion claim involving Pew's religiously based demand for access to pornography, in that Pew asserts that the denial of access to sexually explicit material “violated plaintiff religion as a heterosexual who believes in balance.” (Id., ¶144, 139-53).
Beyond these six discrete claims, Pew's amended complaint also seems to raise seven additional concerns: a denial of a laundry line, (Id., ¶¶ 158-62); poor mail service (Id., ¶¶ 154-157); a denial of “kiosk” time, (Id., ¶¶ 165-68); a claim of “light bulb torture” stemming from institutional lighting, (Id., ¶¶ 169-71); an allegedly inadequate COVID response by the prison, (Id., ¶¶ 172-75); a claim of toilet problems in the prison recreation yard, (Id., ¶¶ 176-80); and, finally, various allegations that Pew's grievances have been obstructed by staff. (Id., ¶¶ 97-105, 124-27, 132-35).
Presented with this amended complaint which stitches together discrete, distinct, and disparate claims based on little more than Pew's subjective sense of personal grievance, the defendants filed a motion to dismiss on September 7, 2021 which alleged that these claims which bore no legal, logical, topical, or temporal connection to one another are improperly joined together in this lawsuit. (Doc. 45).
Pew did not timely respond to this motion to dismiss. Therefore, we instructed him to respond to this amended complaint by October 8, 2021, and warned him that the failure to respond could lead to the motion being deemed unopposed and granted. (Doc. 47). Pew then sought an extension of this deadline and requested that the court provide him with a copy of his own amended complaint. (Docs. 48, 51). We granted these motions, with one narrow exception. While we allowed Pew an extension of time until November 8, 2021 to respond to this motion, and provided him with a copy of his amended complaint, we declined his invitation to also copy the nearly 100 pages of exhibits that accompanied that amended complaint. (Docs. 50, 53). Given the nature of the defense motion, which only challenged the joinder of these claims, we concluded that Pew did not need these voluminous exhibits to respond to the defendants' straightforward argument.
Pew disagreed and lodged an objection to our order. (Doc. 54). Notably, though, Pew has never filed a response in opposition to this motion to dismiss and the time for responding to that motion has now long passed. On these facts, the motion to dismiss will be deemed ripe and for the reasons set forth below, it is recommended that this motion be granted.
II. Discussion
A. Under the Rules of This Court, This Motion Should Be Deemed Unopposed and Granted.
At the outset, under the Local Rules of this Court, Pew 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. As we have stated before, these procedural defaults completely frustrate and impede efforts to resolve this case in a timely and fair fashion, and under the rules of this court warrant dismissal of this lawsuit since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiffs 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, *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)). In this case, Pew has not complied with the Local Rules, or this court's orders, by filing a timely response to this motion. Therefore, these procedural defaults by Pew 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 . . . .”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, 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 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, 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, Pew has failed to comply with Local Rule 7.6 by filing a timely response to this motion to dismiss. This failure now compels us to apply the sanction called for under Rule 7.6 and deem the plaintiff to not oppose this motion.
B. Dismissal of Pew's Amended Complaint Is Also 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.' ” Briscoe, 538 F.3d at 263 (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003) and 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 v. Thiel College, 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 Pew's amended complaint. At the outset, a consideration of the first Poulis factor, the extent of the party's personal responsibility, shows that the delays in this case are entirely attributable to Pew, who has failed to abide by court orders, and has otherwise neglected to litigate this case.
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 comply with court orders now wholly frustrates and delays the resolution of this action. In such instances, the defendants are 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 plaintiffs' 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 v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994)) (some citations omitted). Here, Pew has failed to timely file pleadings, and have not complied with an order of the court. 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 Pew 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 directing him to take specific actions in this case, the Court is compelled to conclude that Pew's actions are not accidental or inadvertent but instead reflect an intentional 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. Pew still declines to obey court orders, and otherwise ignores their 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 these particular claims, since Pew is now wholly non-compliant with their obligations as litigants. Simply put, Pew cannot refuse to address the merits of his claims, then assert the untested merits of these claims as grounds for denying a motion to dismiss. 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 imposition of sanctions.
In any event, as discussed below, we agree that the disparate claims of these defendants are improperly combined in a single lawsuit. Therefore, these conflated claims should be dismissed with instructions that Pew should separately file these discrete individual claims in separate lawsuits if he can.
C. Pew's Claims Are Not Properly Joined in a Single Lawsuit.
In their motion to dismiss, the defendants sought the dismissal of Pew's conflated claims, arguing that the complaint appears to set forth a hodgepodge of individual claims by the plaintiff against different parties based upon discrete and disparate events which bear to legal or logical connection to one another. Upon review of this amended complaint, we agree that the allegations made by Pew often appear to involve distinct acts committed by disparate parties at different times and places. Thus, there is no single, coherent legal, logical, topical, or temporal connection between these various claims. Without some further articulation of a unifying theme or thread between these claims, the joinder of these plainly divergent claims in a single lawsuit is inappropriate under Rule 20 of the Federal Rules of Civil Procedure, the rule governing joinder of defendants in federal litigation, which provides, in part, that:
Person[s] ... may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.Fed. R. Civ. P. 20(a)(2).
In this case, it cannot be said from the complaint that the allegations made by Pew arise out of the same transaction, occurrence, or series of transactions or occurrences. Quite the contrary, these episodes appear to be separate transactions, allegedly committed by different actors at divergent times and places. “[G]iven the hodgepodge of claims raised in the ... complaint, ” Boretsky v. Governor of New Jersey, 433 Fed.Appx. 73, 77 (3d Cir. 2011), this Court may properly, in the exercise of its discretion, dismiss this complaint and require each plaintiff to file separate complaints relating to what seem to be factually distinct claims. Id. In order to add clarity to these claims, we recommend that the Court exercise its discretion by following this course, and dismissing apparently misjoined claims in this complaint without prejudice to Pew filing separate complaints relating to what seem to be factually distinct claims. See Johnson v. Holt, No. 1:13-CV-1866, 2015 WL 672127, at *22-23 (M.D. Pa. Feb. 17, 2015); Johnson v. Chambers, No. 1:11 CV 831, 2012 WL 398335, at *16 (M.D. Pa. Jan. 20, 2012) report and recommendation adopted, No. 1:11 CV 831, 2012 WL 398309 (M.D. Pa. Feb.7, 2012) aff'd, 487 Fed.Appx. 693 (3d Cir. 2012).
This caution is particularly appropriate with respect to Pew, who has twice previously been informed that he may not combine and conflate unrelated claims and parties into a single lawsuit. See, e.g., Pew v. Boggio, No. 3:15-CV-1042, 2016 WL 3024947, at *9 (M.D. Pa. May 4, 2016), report and recommendation adopted, No. 3:15-CV-1042, 2016 WL 3001136 (M.D. Pa. May 25, 2016); Pew v. Wetzel, No. 1:20-CV-668, 2020 WL 6330042, at *5-6 (M.D. Pa. Sept. 3, 2020), report and recommendation adopted, No. 1:20-CV-00668, 2020 WL 6321604 (M.D. Pa. Oct. 28, 2020). Indeed, we note that this is precisely the course which the district court previously followed here when it dismissed the complaints lodged by Pew in the names of the other inmate plaintiffs initially identified in this case. See Burris v. Clark, No. 1:21-CV-421, 2021 WL 2836364, at *7 (M.D. Pa. May 7, 2021), report and recommendation adopted, No. 4:21-CV-00421, 2021 WL 2826756 (M.D. Pa. July 7, 2021).
In sum, all of the Poulis factors favor dismissal of Pew's amended complaint without prejudice to Pew filing separate complaints relating to what seem to be factually distinct claims.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion to dismiss (Doc. 45), be GRANTED and Pew's amended complaint be DISMISSED without prejudice to Pew filing separate complaints relating to what seem to be factually distinct claims.
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.