Opinion
1:22-CV-00033-SPB-RAL
05-02-2024
BRYAN ANGLE II, Plaintiff v. LT. SMITH, LT. FROELICK, C/O GUYTON, SGT. MALUK, C/O BONCELLA, C/O HARRISON, C/O BRIDGES, C/O MCDANIELS, C/O MONTINI, C/O NADAL, C/O ARCLEY, C/O HAM, CO1 LUCKOCK, C/O BLY, C/O SMITH, C/O VANDERHOOF, JOHN & JANE DOES, AND HEX SZEWESKI, Defendants
SUSAN PARADISE BAXTER United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE, ECFNO. 57
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendants' motion (ECF No. 57) to dismiss Plaintiff Bryan Angle Il's action for failure to prosecute be GRANTED. It is further recommended that Defendants' motion (ECF No. 53) for summary judgment pursuant to Fed.R.Civ.P. 56 be DENIED as moot.
IL Report
A. Introduction and Procedural History
Plaintiff Bryan Angle II, an individual formerly in the custody of the Pennsylvania Department of Corrections (“DOC”), commenced this action in the Court of Common Pleas of Erie County, Pennsylvania, against seventeen named defendants and one John Doe defendant employed at the State Correctional Institution (“SCI”) at Fayette. ECF No. 1. His Complaint asserted federal constitutional claims pursuant to 42 U.S.C. § 1983, a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., and state law tort claims. ECF No. 1-2. The action was removed to this Court pursuant to 28 U.S.C. §1441 based on federal question subject matter jurisdiction conferred by 28 U.S.C. §1331.
On October 12, 2023, Defendants filed a motion to dismiss this action for lack of prosecution (ECF No. 57) pursuant to Fed.R.Civ.P. 41(b) and an accompanying brief (ECF No. 58). They also moved for summary judgment pursuant to Fed.R.Civ.P. 56 based on the affirmative defense of failure to exhaust administrative remedies. ECF No. 53. In addition to their supporting brief (ECF No. 54), Defendants filed a concise statement of material facts (ECF No. 55) and exhibits (ECF Nos. 56, 56-1, 56-2, 56-3), in accordance with Local Rule 56(B).
In their motion for summary judgment, Defendants argue that Angle did not exhaust Grievance No. 929547, the only grievance he filed regarding his remaining claims in this action. In support of their argument, Defendants submitted copies of documents relating to this grievance. See ECF Nos 56-1-56-3. Because dismissal based on failure to prosecute is recommended, the undersigned does not address the merits of Defendants' motion for summary judgment but, instead, recommends dismissal of this aspect of the motion based on mootness. The undersigned notes, however, that Defendants have not submitted an affidavit, declaration, or other appropriate evidence to verify the accuracy or completeness of their grievance record exhibits.
The Court entered an Order directing Angle to file a brief in opposition to the motion for lack of prosecution and the motion for summary judgment on or by November 13, 2023. ECF No. 61. Pursuant to LCvR 56(C), the response Order also directed Angle to file a responsive concise statement of material facts by that date. When Angle failed to file any of these documents by December 5, 2023, the Court issued an Order to Show Cause directing Angle to explain his failure or, alternatively, file a brief in opposition to Defendants' motion to dismiss for lack of prosecution, brief in opposition to Defendants' motion for summary judgment, and responsive concise statement, on or before December 19, 2023. ECF No. 62. The Order to Show Cause further advised Angle that his failure to respond may result in the Court dismissing his case based on his failure to prosecute. Id. See also Reavis v. Aurandt, 2022 WL 3920955 at *1 (W.D. Pa. Aug. 31, 2022). To date, Angle has failed to respond to the Court's Order to Show Cause or otherwise indicate that he wishes to proceed with this action.
B. Procedural history of Angle's two other civil rights actions in this Court: l:21-cv-00252 and 2:22-cv-01772
Angle is a prolific and active litigant, having filed many lawsuits in this Court and numerous motions and other documents during the pendency of each lawsuit. The undersigned takes judicial notice of two of Angle's civil rights cases: civil action 1:21-cv-00252 (“Action 252”) and civil action 2:22-cv-01772 (“Action 1772”). By way of background, Action 252 was removed from state court to this Court in September 2021, about four and half months before he commenced the instant action. See Action 252, ECF No. 1. On December 9, 2022, about ten and half months after Angle filed this action, Action 1772 was removed from state court to this Court. See Action 1772, ECF No. 1. Angle initiated each of these cases while he was incarcerated at SCI Fayette based on events alleged to have occurred there.
In Action 252, the Court granted the Defendant's motion for summary judgment on February 27, 2023. See Action 252, ECF Nos. 62 (Memorandum Opinion), 63 (Rule 58 Judgment). About a month later, Angle filed a Motion to Alter Judgment (ECF No. 64) and a Notice of Appeal of the Rule 58 Judgment (ECF No. 65). The Court granted in part and denied in part Angle's motion and issued an Amended Judgment Order pursuant to Fed.R.Civ.P. 58 in favor of the Defendant on April 14, 2023. See Action 252, ECF Nos. 68 (Order on Motion), 69 (Rule 58 Amended Judgment). On April 26, 2023, Angle's appeal was dismissed for failure to pay the filing fees. See Action 252, ECF No. 70.
In Action 1772, Defendants moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) on January 31, 2023. See Action 1772, ECF No. 8. Two months later, Angle filed a motion for emergency injunctive relief. See Action 1772, ECF No. 19. On April 11,2023, the undersigned issued a Report and Recommendation recommending that the Court deny the motion. See Action 1772, ECF No. 20. Ten days later, on April 21, Angle filed another motion for emergency injunctive relief. See Action 1772, ECF No. 21. In this motion, Angle advised the Court that he had been transferred from SCI Fayette to the Fayette County Jail. See id.
Meanwhile, Angle had yet to file a brief in opposition to Defendants' Rule 12(b)(6) motion to dismiss, which had been due on or by March 6, 2023, pursuant to the Court's February 3, 2023 scheduling order. See Action 1772, ECF No. 11. When Angle had failed to do so by May 1, 2023, the Court issued an Order to Show Cause directing Angle to explain his failure or file a brief in opposition on or by May 15, 2023. See Action 1772, ECF No. 22. The Court also informed Angle that it “notes from [his] return address that he has a new address,” and “[t]hough Plaintiff has not notified the Court of his changed address, it will use this new address to mail him this Order as a one-time courtesy.” Id. The Court then advised Angle that “[d]uring the pendency of any litigation, the parties are under a continuing obligation to keep the Court informed of their address.” Id. (quoting Smith v. Pennsylvania Dep't of Corr., 2012 WL 4926808, at *2 (W.D. Pa. Oct. 16, 2012).
Four days later, on May 5, the Court's April 11 Report and Recommendation was returned as undeliverable. Henceforth, all mail sent to Angle's address of record at SCI-Fayette was returned as undeliverable. Although Angle filed a response to the show cause order on May 8, 2023, he did not notify the Court of a change in address. See Action 1772, ECF No. 24.
When the Court had not received Angle's brief in opposition by July 18, 2023, it issued Angle a second Order to Show Cause directing Angle to explain his failure or file the brief on or by August 1, 2023. See Action 1772, ECF No. 33. The Court added:
The Court reminds Angle for a final time that, “[d]uring the pendency of any litigation, the parties are under a continuing
obligation to keep the Court informed of their address.” Until and unless he provides the Court with his new address, the Clerk of the Court (and presumably Defendants) will continue to send his mail to the SCI-Fayette address currently on the docket. That said, the Court will mail this Order and accompanying documents to the return address of Angle's most recent filing as a final courtesy.Id. (citation omitted). On August 4, 2023, this Order was returned to the Court as undeliverable, as have all future correspondences.
C. Additional Procedural History of this Action
Angle commenced this action while he was incarcerated at SCI Fayette and the action was removed to this Court in January 2022. On February 14, 2022, Defendants moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). See ECF No. 5. After the Court granted in part and denied in part the motion (ECF No. 21), Angle filed an Amended Complaint (ECF No. 25). Defendants subsequently filed a motion pursuant to Rule 12(b)(6) to dismiss all but one claim raised in the Amended Complaint. ECF No. 26. When Angle failed to file a brief in opposition to the motion by the extended deadline (ECF Nos. 28, 36), the Court issued an Order to Show Cause directing Angle to explain his failure or, alternatively, file his brief in opposition within thirty days of the order (ECF No. 37). Upon receipt of Angle's response to its Order to Show Cause, the Court issued the following order:
On November 18, 2022, the Court ordered Plaintiff to show cause for his failure to respond to Defendants' motion to dismiss Plaintiffs amended complaint (ECF No. 26) by November 2, 2022. ECF No. 37. In response, Plaintiff averred that he already responded to Defendants' motion, but that COs' are tampering with his mail and have “stolen/lost the motion,” preventing him from filing another response. ECF No. 38. Angle asserted these same allegations in three previous submissions (ECF Nos. 30, 32, 34). The Court responded to those submissions by holding a status conference (ECF No. 33), sending Angle two copies of Defendants' motion to dismiss (ECF Nos. 31, 35), and extending his response deadline three times (ECF Nos. 31, 36, 38). This record casts serious doubt on the plausibility of the claims asserted
in his instant response, as does the record in Angle's Civil Action, l:21-cv-00252 (Action 252), which the Court takes judicial notice of. In Action 252, Angle seems to have encountered no such difficulties, as he managed to timely file his response to the Action 252 Defendants' summary judgment motion on November 7, 2022. Thus, the Court concludes that no additional copies of Defendants' motion nor further response extensions are warranted in the instant action, and it will proceed by assessing Defendants' motion to dismiss Angle's amended complaint (ECF No. 26) without the benefit of Plaintiff s response.ECF No. 40.
On March 1, 2023, the Court granted in part and denied in part Defendants' Rule 12(b)(6) motion to dismiss the Amended Complaint. See ECF No. 43. Thereafter, the remaining Defendants answered the claims left in the Amended Complaint and the Court issued a Case Management Order setting deadlines for the close of discovery, pretrial statements, and dispositive motions. See ECF Nos. 45 (Answer), 47 (CMO).
The remaining claims and Defendants in this case are Angle's Eighth Amendment excessive force and Pennsylvania state law assault and battery claims against Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Mantini, Nadal, Arcley, and Hammett; his Eighth Amendment failure to intervene/protect claim against Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Mantini, Nadal, Arcley, and Hammett; and his First Amendment retaliation claim against Guyton, Boncella, and McDaniels. See ECF No. 43.
Under this CMO, Angle's pretrial statement was due on or by July 10, 2023. See ECF No 47. When Angle failed to file this document by July 28, the Court issued an Order to Show Cause directing Angle to explain his failure or submit his pretrial statement on or before August 8, 2023. See ECF No. 50. The Court further ordered Angle “to SHOW CAUSE on or before August 8, 2023, for his failure to notify the Court of his new address.” Id. The Court remarked:
The Court takes judicial notice of the docket in Plaintiffs other civil action, 2:22-cv-01772, and Plaintiffs motion for injunctive relief (ECF No. 21), wherein he advised the Court of his recent transfer to Fayette County Prison, as well as his return address on submissions he has filed in that Action. As the Court has reminded Plaintiff in that action, “[d]uring the pendency of any litigation, the parties are under a continuing obligation to keep the Court
informed of their address.” Smith v. Pennsylvania Dep't of Corr., 2012 WL 4926808, at *2 (W.D. Pa. Oct. 16, 2012). ‘Id. The Court also advised Angle that his “failure to comply with this order may result in the dismissal of this action for failure to prosecute.” Id. As a courtesy, the Court mailed this order and its order (ECF No. 49) granting Defendants' motion for an extension to file dispositive motions to Angle's Fayette County Prison address.
To date, Angle has not responded to the Court's latest Order to Show Cause or notified the Court of an updated address. Nevertheless, when the Court extended the dispositive motions deadline a second time on September 12, 2023, it mailed a copy of the Order to Fayette County Prison out of an abundance of caution. See ECF No. 52. See also ECF No. 51 (Defendants' motion). However, this Order was returned as undeliverable on September 25, 2023. That day, the Court learned from Fayette County Prison that Angle had been released.
Defendants filed their pending motion to dismiss this action for failure to prosecute and for summary judgment on October 12, 2023. Thereafter, the Court mailed Angle copies of its orders to respond to each motion, as well as a show cause order when he failed to timely respond to either. These orders were mailed to Angle's address of record: SCI Fayette. See ECF Nos. 59, 60, 61, 62. Each order was returned as undeliverable.
As of the date of this Report and Recommendation, Angle has not notified the Court of a change of address, responded to Defendants' motions, or responded to the Court's show cause orders. The last action Angle took to prosecute this case was when he filed objections to the undersigned's Report and Recommendation on Defendants' motion to dismiss the Amended Complaint on February 17, 2023. See ECF No. 42. According to the DOC Inmate/Parolee Locator, Angle was released from the DOC's custody on April 11, 2023. Inmate/Parolee Locator, Pennsylvania Department of Corrections, https://inmatelocator.cor.pa.gOv/#/ (last visited Feb. 25, 2024).
D. Standard of Review
Federal Rule 41(b) authorizes a defendant to move to dismiss an action where a plaintiff fails to prosecute the action. A plaintiff s pro se status does not excuse his failure to prosecute his case. See Huertas v. City of Philadelphia, 139 Fed.Appx. 444 (3d Cir. 2003); Kamuck v. Shell Energy Holdings GP, LLC, 2015 WL 1345235 at *10 (M.D. Pa. 2015).
The Court of Appeals for the Third Circuit has set out a six-factor balancing test to guide a court in determining whether a case or claim should be dismissed for failure to prosecute. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 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 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. Id. at 868. There is no “magic formula” or “mechanical calculation” to determine whether a case should be dismissed for failure to prosecute, Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992), and not all of the six factors need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Rather, the court must “properly consider and balance” each of the six factors based on the record. See Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868).
“[D]ismissal with prejudice is an ‘extreme' sanction” that should be employed as a “last, not first, resort.” Hildebrand, 2019 WL 1783540, at *3 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). Close calls should “be resolved in favor of reaching a decision on the merits.” Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, the Court of Appeals “has not hesitated to affirm the district court's imposition of sanctions, including dismissals in appropriate cases.” Id. (citing Poulis, 747 F.2d at 867 n. 1).
The Poulis factors weigh decidedly in favor of dismissal of the instant action.
E. Discussion
The first Poulis factor considers the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams, 29 F.3d at 873 (“[I]n determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal.”). Because Angle proceeds pro se, he is solely responsible for his own conduct, including his noncompliance with the Court's scheduling orders, response orders, and orders to show cause. See, e.g., Colon v. Karnes, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012) (“Plaintiff is proceeding pro se, and thus is responsible for his own actions.”). As the Court emphasized to Angle numerous times, he alone is also responsible for providing the Court with his current address. See Smith, 2012 WL 4926808, at *2 (“During the pendency of any litigation, the parties are under a continuing obligation to keep the Court informed of their address.”). This factor weighs heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[,] the excessive and possibly irremediable burdens or costs imposed on the opposing party,” Adams, 29 F.3d at 874, and “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). As evident from the procedural history of this case, Defendants have spent a substantial amount of time and resources litigating this case. Further, Angle's “failure to communicate with the Court and continued inaction frustrates and delays resolution of this action” by preventing Defendants from receiving a timely adjudication of his claims. See Mack v. United Slates, 2019 WL 1302626, at * 1 (M.D. Pa. Mar. 21, 2019) (“[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case.”). This factor also weighs in favor of dismissal.
The third Poulis factor-a history of dilatoriness-also supports dismissal. Over the course of many months, Angle repeatedly failed to respond to the Court's orders and notify the Court of his updated addresses. Angle also failed to respond to Defendants' motion to dismiss his Amended Complaint despite ample opportunities to do so and assistance from the Court. He has displayed similar conduct in Action 1772. This record amply demonstrates Angle's history of dilatoriness. See Mack, 2019 WL 1302626, at *2 (“Mack has established a history of dilatoriness through his failure to notify the Court of his whereabouts and failure to comply with Court Orders and rules.”); Briscoe v. Klaus, 538 F.3d 252, 260-61 (3d Cir. 2008).
The fourth Poulis factor, willfulness, considers whether the plaintiffs conduct “involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. Through his prosecution of numerous prior civil rights lawsuits, Angle has demonstrated his thorough understanding of the litigation process. Angle's protracted silence in Action 252, Action 1772, and this action evidences that his inaction has been willful and that he has knowingly abandoned this case.
The fifth factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that monetary sanctions are ineffective where the Plaintiff is indigent. See, e.g., Brennan v. Clouse, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) (citing Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002)) (“Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.”). Moreover, alternative sanctions are unlikely to be effective against a party with whom the Court cannot communicate and who refuses to communicate with the Court. See Mack, 2019 WL 1302626, at *2 (noting that the court was “incapable of imposing a lesser sanction” on a plaintiff who refused to participate in his own lawsuit). As such, this factor also weighs in favor of dismissal.
Finally, the Court must consider the potential merit of Plaintiff s claims. A claim will be deemed meritorious “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. In this case, the Court has already determined that some of Angle's claims, if their underlying allegations were to be proven, may have merit. See Angle v. Smith, 2023 WL 2873255, at * 1 (W.D. Pa. Feb. 7, 2023), report and recommendation adopted, 2023 WL 2299304 (W.D. Pa. Mar. 1, 2023). Thus, the sixth factor militates against dismissal.
On balance, the undersigned concludes that five of the six Poulis factors support dismissal. While the undersigned is mindful of this Circuit's strong policy in favor of deciding cases on the merits, such a resolution is impossible where the plaintiff declines to participate in his own lawsuit. Here, Angle's failures to notify the Court of his current address, respond to the Court's orders, and respond to Defendants' pending motions, have prevented this case from progressing and denied the remaining Defendants a just and efficient resolution of the claims against them. Consequently, the undersigned concludes that the sanction of dismissal is necessary. Thus, Defendants' motion (ECF No. 57) to dismiss for lack of prosecution should be GRANTED.
III. Conclusion
For the reasons set forth above, it is respectfully recommended that Defendants' motion to dismiss the Amended Complaint for lack of prosecution (ECF No. 57) be GRANTED. As such, it is also recommended that Defendants' motion for summary judgment (ECF No. 53) be DENIED as MOOT.
IV. Notice
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 days. Any party opposing the objections shall have fourteen days 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, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).