Opinion
1:21-CV-00027-SPB
06-06-2022
JAKWARIS ROBISON, Plaintiff v. WARDEN KEVIN SUTTER, HEAD NURSE HEIDI KARASH, NURSE DENISE LONG, NURSE TERI MASI, NURSE EMILY TREVELLINE, NURSE AUTUMN BROWN, NURSE RENEE FOX, NURSE CINDY LEANA, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS ECF NO. 53 ECF NO. 56
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that the Second Amended Complaint, filed in the abovecaptioned case at ECF No. 52, be dismissed because of Plaintiffs failure to prosecute and that the Defendants' Motions to Dismiss at ECF Nos. 53 and 56 be then denied as moot.
II. Report
Plaintiff Jakwaris Robison (“Robison”) commenced this civil rights action against the Warden of the Erie County Prison, Kevin Sutter, and prison nurses Heidi Karash, Denise Long, Teri Masi, Emily Trevelline, Autumn Brown, Renee Fox, and Cindy Leana (collectively, “Defendants”). See ECF No. 11 (original complaint). Robison alleges that the Defendants violated his rights under the Eighth Amendment by failing to provide him with necessary dental care, resulting in the extraction of his tooth. See id., generally.
The Defendants moved to dismiss Robison's complaint. See ECF No. 29, 31. In response, Robison filed an amended complaint, adding the Erie County Prison as a defendant. See ECF No. 36. The Court denied the then-pending motion to dismiss as moot based on the filing of Robison's amended complaint. ECF No. 37. The Defendants then moved to dismiss the amended complaint. See ECF Nos. 39, 41. Robison filed a brief in opposition to the motion. See ECF No. 45.
Upon review, the undersigned recommended that the motions to dismiss be granted. See ECF No. 49. This disposition was recommended based on the following conclusions. First, the claims against the Erie County Prison should be dismissed because the prison is not a “person” subject to suit. Id. at p. 6 (citing Sledge v. Erie Cty. Prison, 2021 WL 2073798, at *4 (W.D. Pa. May 24, 2021). Second, the claims against the Defendants in their official capacities should be dismissed because Robison failed to identify a “custom or policy” of the county that caused the alleged violation of his civil rights as necessary to support a municipal liability claim. Id., p. 7, (citing Monell v. Dep't of Soc. Servs. of N. Y., 436 U.S. 658, 694 (1978)). Third, dismissal of the claims against Defendant Sutter was recommended because the facts alleged did not support his personal involvement in the alleged wrongful conduct. Id., (citing Colon v. Anglikowski, 2021 WL 2875477, at *7-8 (W.D. Pa. July 8, 2021). Fourth, Robison's purported due process claims against Defendants Sutter and Karash were recommended for dismissal because, construed as claims of supervisory liability, Robison's conclusory allegations were insufficient to state such a claim against either Defendant. And, to the extent Robison attempted to allege a Fourteenth Amendment due process claim, it too was recommended for dismissal based upon the insufficiency of his allegations to support such a claim. Id., p. 11.
As to the remaining defendants, the undersigned recommended that Robison's Eighth Amendment deliberate indifference claims against them also be dismissed. See id. p. 13. Robison's allegations, while taken as serious, did not establish constitutional deliberate indifference by these defendants. The amended complaint acknowledged that after complaining about his tooth, Robison was “repeatedly seen and examined by medical department personnel.” Id., p. 14. He was regularly provided with antibiotics and pain medication. Id. His amended complaint acknowledged that the antibiotics at least temporarily relieved or mitigated his infection.” Id. Because Robinson's allegations demonstrated that he received some care reasonably calculated to address his dental condition and to mitigate his discomfort, the amended complaint did not support an inference the defendants were deliberately indifferent to his dental needs. Id. Accordingly, the undersigned recommended that Robison's amended complaint be dismissed. Because amendment to allege additional facts was not clearly futile, however, the undersigned further recommended that Robison be given another opportunity to amend. Id., p. 17 (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
The Court adopted the Report and Recommendation on December 21, 2021. ECF No. 50. The Court granted Robison leave to file a Second Amended Complaint (“SAC”). Id. Robison filed a SAC on January 21, 2022, and that pleading is now the operative pleading in this matter. See ECF No. 52. The SAC again asserted claims against the same defendants, with the exception of the Erie County Prison. See id.
The Court dismissed Robison's claims against the Erie County Prison with prejudice. See ECF No. 50.
The Defendants again moved to dismiss. See ECF Nos. 53, 56. They contend that Robison's SAC failed to cure the fatal defects identified in prior pleading. Specifically, the Defendants argue that:
1. The claims against Defendant Sutter in his official capacity should again be dismissed;
2. The claims against Defendant Sutter in his individual capacity should again be dismissed based on Robison's failure to allege facts to support Sutter's personal involvement;
3. Robison's claim for injunctive relief should be dismissed because Robison's tooth was extracted on November 18, 2020, thereby rendering his prospective claim for relief moot;
4. Robison's claim for declaratory relief should be dismissed because it seeks to adjudicate past conduct; and
5. The deliberate indifference claims against the other defendants should be dismissed because the SAC merely re-alleges the factual allegations of Robison's prior pleading, which the Court previously found to be legally insufficient.See ECF Nos. 54, 57.
Robison was ordered to file a response to the motions to dismiss by February 4, 2022ECF Nos. 55, 58. Robison's response was due on or before March 7, 2022. Id. Robison failed to file a response by that date, and on April 3, 2022, the Court issued an Order to Show Cause directing him to explain his failure to comply with the Court's order. ECF No. 60. He was further admonished that his failure to respond may result in the Court construing the motion to dismiss as unopposed. Id. (citing Popa v. Bureau of Prisons, 2019 WL 2212151, at *1 (W.D. Pa. Apr. 4,2019)). To date, Robison has failed to respond to the motion to dismiss or the Court's Show Cause Order or to otherwise indicate that he wishes to proceed with this action. The Pennsylvania Department of Correction's Prisoner Locator website continues to list Robison's current place of incarceration as SCI-Albion, the address to which the Clerk of the Court has mailed the Court's scheduling order and Order to Show Cause. See Pennsylvania Department of Corrections Inmate Locator tool available at http://inmatelocator.cor.pa.gOv/#/, which provides that Robison is presently incarcerated at SCI-Albion. See also Washington v. Gilmore, 2022 WL 819302, at *8 (W.D. Pa. Mar. 18, 2022) (taking judicial notice of the PA DOC's Inmate Locator website). The Court's mailings to Robison have not been returned as undeliverable.
As noted on the docket, a copy of this order was mailed to Robison at the State Correctional Institution at Albion, his address of record. See ECF No. 58. Due to a clerical error, that mailing was returned on the Court. It was remailed to Robison on February 17, 2022. ECF No. 59.
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 Mindekv. 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 One, Three, and Four all relate to Robison'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. With respect to the second factor-the prejudice caused to the adversary by Robison'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 slightly in favor of dismissal, albeit only slightly. The Court previously identified deficiencies in each of Robison's claims. Defendants have raised strong arguments that Robison has failed to cure any of these deficiencies, and Robison has failed to respond to these arguments. Given the early procedural posture of this case, however, this factor will be assigned less weight than others. 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. Because Robison filed this action without the payment of the required filing fee, it does not appear that monetary sanctions are appropriate. Moreover, failure to comply with the Court's order has prevented this case from proceeding and indicates that he has no serious interest in pursuing this case. It therefore appears that dismissal is the most appropriate action in response to Robison's repeated noncompliance. Mindek, 964 F.2d at 1373. Accordingly, the SAC filed in the above-captioned case should be dismissed for failure to prosecute and the pending Motions to Dismiss, ECF Nos. 53, and 56, should be denied as moot.
III. Notice Regarding Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. 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). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3dl87 (3d Cir. 2007).