Opinion
Civil Action 20-808
09-20-2023
LAMONT BULLOCK, Plaintiff, v. MIKE HICE, DEPARTMENT OF CORRECTIONS, WILLIAM NICHOLSON, STEPHANY WOODS, MARK DIALESANDRA, SUPERINTENDENT ROBERT GILMORE, SUPERINTENDENT MICHAEL ZAKEN, TRACEY SHAWLEY, JOHN WETZEL, JOHN MCANANY, DR. SMYTH, JAYAKUMAR, DR. JAY, DR. PARKS, PHYSICIAN ASSISTANT MARK HAMMER, CORRECTIONAL OFFICER ANGELO, CORRECTIONAL OFFICER W.T. HENRY, CORRECTIONAL OFFICER MCCRACKEN, CORRECTIONAL OFFICER MASCETTA, PHYSICIAN ASSISTANT FETTERMAN, DR. BAIRD, JOHN POKOL, STANLEY FALOR, CHARLES ROSSI and SAFETY MANAGER, Defendants.
J. Nicholas Ranjan, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Plaintiff Lamont Bullock (“Plaintiff') brings this pro se action arising out of allegations that, while incarcerated, he was deliberately exposed to contaminated foods and other harmful substances, and that he was denied proper medical treatment. ECF No. 20.
Although Plaintiff sued numerous defendants, only the following defendants remain: (1) Dr. Jayakumar; (2) Dr. Jay; (3) Dr. Parks; (4) Dr. Stanley Falor; and (5) “Safety Manager.” For the reasons below, it is respectfully recommended Plaintiffs remaining claims be dismissed based on his failure to prosecute.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
In his Amended Complaint, Plaintiff brings claims against numerous defendants arising out of allegations spanning the course of over 20 years at 8 different correctional institutions.ECF No. 20. Broadly, Plaintiff claims that prison officials poisoned him by feeding him contaminated foods and beverages; used dirty needles to draw blood; and exposed him to harmful odors and dusts. Id. ¶¶ 23-25, 30, 59, 48, 52-56. As a result, Plaintiff alleges that he developed various illnesses. Id. ¶¶ 23, 56, 59.
Plaintiff claims that he was diagnosed with Hepatitis-C and denied treatment as early as 1998. ECF No. 20 ¶¶ 3739. He was incarcerated at the State Correctional Institutions at Huntington, Smithfield, Greene, Pittsburgh, Graterford, Houtzdale, Fayette, and Dallas. Id. ¶¶ 23, 35, 62, 67, 69, 70.
Plaintiff claims that his medical records have been fabricated to conceal his illnesses and to falsely indicate that he suffers from paranoid thinking. Id. ¶¶ 31, 33, 36. He asserts that he has been denied proper treatment, testing and diagnoses for those illnesses. Id. ¶¶ 22, 32-43, 56-64. Plaintiff also claims that the DOC transferred him to various institutions to cover up what happened. He believes that individuals at SCI-Greene are plotting to cause his death. Id. ¶ 152.
Plaintiff began this lawsuit on June 3, 2020, by filing a Motion for Leave to Proceed in forma pauperis, together with a proposed Complaint. ECF No. 3. After the Court identified certain deficiencies with Plaintiffs filing, he requested multiple extensions of time to cure the deficiencies or submit the requisite filing fee. ECF Nos. 3, 5, 7.
Plaintiff eventually paid the filing fee, and his original Complaint was filed on March 30, 2021. ECF Nos. 15 and 18. The operative Amended Complaint was filed on June 21,2021. ECF No. 20.
The Court granted Plaintiffs motion for service by U.S. Marshal, and it directed Plaintiff as follows.
Plaintiff must keep the court advised of his current address at all times throughout this litigation. SPECIFICALLY, Plaintiff is ordered to notify the court in writing as to any and all address changes, including all temporary transfers to another jail or prison or other facility. Plaintiffs failure to do so may result in dismissal of this action.ECF No. 24 at 3.
1. Prior Dismissal of Claims against Medical Defendants, Corrections Defendants and Dr. Long
Five medical staff defendants (the “Medical Defendants”), sixteen Department of Corrections defendants (the “Corrections Defendants”), and Defendant Dr. Ronald Long moved to dismiss Plaintiffs claims. ECF Nos. 59, 63, 77.
The undersigned issued Reports and Recommendations (“R&Rs”), recommending that Dr. Long's Motion to Dismiss be granted, and that the Corrections Defendants' and Medical Defendants' Motions to Dismiss also be granted with limited leave to amend. ECF Nos. 100,102, 103.
On September 28, 2022, the Court adopted the R&Rs and granted the Motions to Dismiss filed by the Dr. Long, the Corrections Defendants, and the Medical Defendants. ECF Nos. 117 and 118. While the Court dismissed certain claims against the Corrections Defendants and Medical Defendants with prejudice, it granted Plaintiff leave to amend as to several of his claims, to the extent he could cure the deficiencies identified in the R&R. The Court instructed as follows.
Mr. Bullock must file any Second Amended Complaint by no later than October 28,2022. Failure to do will result in all his claims being dismissed with prejudice.ECF No. 117 at 2; ECF No. 118 at 2 (emphasis added).
Upon Plaintiffs request, the Court granted him an extension of time until December 27, 2022, to amend his complaint. ECF Nos. 120 and 121. However, Plaintiff did not amend his pleadings by this date.
On March 1, 2023, the Medical Defendants filed a Motion to Dismiss for Lack of Prosecution and Brief in Support. ECF No. 122 and 123. The Court ordered Plaintiff to file a response to this motion by March 23, 2023. ECF No. 124. Upon Plaintiffs request, the Court granted Plaintiff an extension of time to respond until May 24,2023. ECF Nos. 125 and 126. Still, Plaintiff did not file a response to the Medical Defendants' Motion to Dismiss or an amended complaint.
On June 28, 2023, the undersigned issued an R&R recommending that Plaintiffs claims against the Medical Defendants and Corrections Defendants be dismissed. ECF No. 127. Among other things, the undersigned noted that Plaintiff appeared to have been released from prison, but he never informed the Court of his new address.
Plaintiff did not file any objections to the R&R. On July 17, 2023, the Court adopted this R&R and dismissed Plaintiff s claims against the Medical Defendants and Corrections Defendants. ECF No. 129.
2. Remaining Defendants
a. Doctors Jayakumar, Jay, Parks and Falor
A return of service was executed for Dr. Jayakumar, Dr. Jay, Dr. Parks, and Dr. Falor on September 17, 2021. ECF No. 56 and 4, 8, 13 and 14. However, these four defendants have not entered an appearance or otherwise defended this action to date. Plaintiff has not requested the entry of default or taken any further action on his claims against these defendants.
On June 28, 2023, the Court issued an Order to Show Cause directing Plaintiff to show good cause by July 26, 2023, why his claims against Doctors Jayakumar, Jay, Parks, and Falor should not be dismissed be dismissed for failure to prosecute. ECF No. 128. The Court mailed a copy of the Order to Show Cause to Plaintiff at his address of record, SCI-Greene.
The Order to Show Cause was returned to the Court as undeliverable because Plaintiff had been paroled as of April 17,2023. To date, Plaintiff has not responded to the Order to Show Cause or updated his address of record.
b. Safety Manager
Also remaining is a defendant Plaintiff only identifies as “Safety Manager” at SCI-Greene. Although counsel for the Corrections Defendants entered an appearance on behalf of Marvin Cumberledge as Safety Manager and waived service of summons, no responsive pleading was ever filed, and Plaintiff has not taken any further action to prosecute relative to this defendant. ECF Nos. 37 and 38.
B. DISCUSSION
Punitive dismissal of an action for failure to comply with court orders is left to the discretion of the court. 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, as 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.
Upon review, the Poulis factors weigh in favor of dismissing Plaintiff s remaining claims. First, as a pro se litigant, Plaintiff is solely responsible for prosecuting his claims and informing the Court of his current address. Second, Plaintiffs failure to update his address and comply with the Court's Orders has prejudiced Defendants by delaying the timely resolution of this action.
With respect to the third and fourth factors, Plaintiff has a history of dilatoriness in failing to respond to the Court's Orders and failing to prosecute his claims against the Remaining Defendants. Given Plaintiffs lack of meaningful participation in this action for some months, his conduct appears to be willful.
The sixth factor, the merits of the claim, should also be weighed against Plaintiff. Plaintiff does not appear to plead a viable claim against any of Remaining Defendants. While Plaintiff names Dr. Falor, Dr. Jayakumar, and the Safety Manager as defendants, he does not specifically plead any claims against them. ECF No. 20 ¶¶ 268-273. He also does not personally identify or include any factual allegations as to Safety Manager.
Plaintiff pleads claims under the Eighth Amendment and Americans with Disabilities Act against Dr. Parks and Dr. Jay. Id. ¶ 270. But he includes no specific factual allegations as to Dr. Parks in support of these claims. And his factual allegations against Dr. Jay do not support a plausible claim under the Eighth Amendment or ADA. Plaintiff only pleads a short delay in being able to see Dr. Jay for a sick call appointment in March 2018. Id. ¶¶ 120, 129.
Plaintiff mentions Dr. Jay elsewhere in his Amended Complaint, but he does not identify any other wrongdoing on her part. ECF No. 20 ¶¶ 129, 130, 135, 136.
The final factor to consider is the effectiveness of sanctions other than dismissal. Plaintiff's failure to respond to the Court's Orders, to pursue his claims against the Remaining Defendants, or to update his address of record suggests that Plaintiff has no interest in currently prosecuting his action. For these reasons, dismissal is the most appropriate sanction.
C. CONCLUSION
For these reasons, it is respectfully recommended that the Court dismiss Plaintiff's remaining claims in this action based on his failure to prosecute.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.