Opinion
22-CV-00328-SPB
02-20-2024
DARNELL DOSS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant,
REPORT AND RECOMMENDATION ON DEFENDANTS' PENDING MOTIONS
IN RE: ECF NO. 17
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Pending before the Court is a motion to dismiss, or in the alternative for summary judgment, filed by the Defendant, the United States of American (“the Government”). The motion has been referred to the Undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated herein, it is respectfully recommended that this mater be dismissed for the Plaintiffs failure to prosecute.
II. Report
A. Background
Plaintiff Darnell Doss (“Doss”) initiated this action on October 25, 2022, by filing a motion to proceed in forma pauperis and an attached pro se civil rights complaint (ECF No. 1; ECF No. 1-1). The Court granted his motion and Doss's complaint was then docketed. See ECF Nos. 5, 7. Doss contends that the federal Bureau of Prisoners (“BOP”) negligently failed to diagnose and treat his partially tom anterior cruciate ligament (“ACL”) and negligently failed to provide handles or bedrails on his upper bunk ladder, which led to his falling from his bunk and sustaining injuries in September of 2018. Id. These claims were brought under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”).
The Government filed a motion to dismiss, or in the alternative, for summary judgment. See ECF No. 17. As to Doss's claim regarding his tom ACL, the Government contends the claim is barred by the applicable statute of limitations and, alternatively, because Doss failed to file a Certificate of Merit as required under Pennsylvania law. The Government asserts that the claim based on the absence of guards on Doss's upper bunkbed is foreclosed by the discretionary function exception to the limited waiver of sovereign immunity under the FTCA and, alternatively, contrary to Doss's medical records.
Doss was ordered to respond to the motion to dismiss/summary judgment by September 1, 2023. See ECF No. 23. Doss was granted an extension of time respond; extending the due date to October 16, 2023. A copy of that order was sent to Doss via first class mail, but it was returned to the Court as undeliverable. Doss's address of record, as noted on the docket, was Laptal Pivillon, 20072 North Fourth Street, Harrisburg, Pa. 17108. The Government also had difficulty serving copies of its filings upon Doss at that address. The Government notified the Court that a copy of its motion for an extension of time to respond to Doss's complaint was returned with the notation “Return to Sender - Unable to Deliver.” See ECF No. 24. After apparently undertaking some independent research, the Government recast Doss's address as Capital Pavilion, 2012 North Fourth Street, Harrisburg, Pa. 17102. The Government's additional mailing to Doss at that address was not returned. See id. This information prompted the Court to send Doss a copy of the response order to the “Capital Pavilion” address. It was not returned. Doss then filed a motion to continue, which the Court construed as a motion for a further extension of time to file his response. ECF No. 27. The motion was granted and Doss was given until October 16, 2023, to file his response. ECF NO. 28. A printed copy of that Order was also mailed to Doss at the “Capital Pavilion” address. It was returned to the Court, with a notation “RTS - Not at this address.”
Doss has not filed any response to the Government's motion or notified the Court of a further change of address. On December 8, 2023, the Court issued a show cause order directing Doss to explain his failure to file a response to the Government's motion and cautioning him that his failure to do so could result in his case being dismissed for a failure to prosecute. See ECF No. 29. Doss was given until December 18, 2023, to respond to the Court's order, or in the alternative, to file his response to the motion to dismiss. Id. As before, the show cause order was mailed to the “Capital Pavilion” address but this time it was not returned to the Court as undeliverable.
B. Legal Standard
The Federal Rules of Civil Procedure permit dismissal of an action for “failure of the plaintiff to prosecute or comply with these rules or order of court.” See Fed.R.Civ.P. 41(b). Additionally, district courts have the inherent power to dismiss an action sua sponte for failure to prosecute. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). When deciding whether to dismiss an action because of a plaintiffs failure to prosecute, the Court must balance the factors set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). These include: (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. Id. at 868. Not all of the Poulis factors must be satisfied in order for a court to dismiss a complaint. See Mindek v. Rigatti, 964 F.2d 1369,1373 (3d Cir. 1992).
C. Discussion and Analysis
Because Doss is proceeding pro se, he is personally responsible for his failure to comply with the Court's orders requiring him to update his address and respond to the Government's motion. See Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002). Accordingly,,the first Poulis factor weighs in favor of dismissal.
The second Poulis factor-prejudice to the adversary caused by the failure to meet scheduling orders-also weighs in favor of dismissal. Doss's failure to respond to the Government's motion and apparent failure to update his address have caused the Government to expend resources to investigate Doss's current address and have materially delayed the resolution of the Government's motion. Doss's repeated failures to update his address and to respond to multiple orders of court directing him to file a response to the Government's motion also present a history of dilatoriness within the meaning of the third Poulis factor. See Jennings v. Clinton Cnty., 2023 WL 3588721 at *1 (M.D. Pa. May 22, 2023) (dismissing for failure to prosecute where plaintiff failed to update his mailing address). Doss's failure to comply with court orders also evidence an intention to abandon this litigation. See, e.g, Cohn v. PSU, 2022 WL 2231826, at *9 (M.D. Pa. June 21, 2022); Pauley on behalf of Asatru/Odinist Faith Cmty. v. Samuels, 2019 WL 4600195, at *2 (W.D. Pa. Sept. 23, 2019), aff'd, 2022 WL 1552125 (3d Cir. May 17, 2022).
The Court finds that the fourth and fifth Poulis factors, whether Doss's conduct was willful or in bad faith and the effectiveness of sanctions other than dismissal, also weigh in favor of dismissal. First, Doss's failure to abide by Court orders, including an order to show cause, demonstrates a willful disregard for procedural rules and court directives. Second, because Doss has not communicated with the Court in any manner in nearly six months, the Court is without any viable alternative to dismissal.
Finally, the sixth factor, whether Doss's claims have facial merit, is neutral or arguably weighs in favor of dismissal. A claim is deemed “meritorious” for the purposes of the Poulis analysis when the allegations of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. See also Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). Here, the Government's motion to dismiss argues that Doss's claim based on inadequate medical care for his ACL tear is barred by the FTCA's two-year statute of limitations for submitting an administrative claim to the BOP and that his FTC A claim based on the lack of bunkbed guards is barred by the discretionary function exception to the FTCA's limited waiver of sovereign immunity. The FTCA's administrative exhaustion requirement and two-year statute of limitation for submitting an administrative claim are jurisdictional and cannot be waived. See Shelton v. Bledsoe, MS F.3d 554, 569 (3d Cir. 2015). The discretionary function exception, which the Government raises as a facial challenge to the complaint, also presents a jurisdictional bar to Doss's claim. See United States v. Schiaffino, 317 Fed.Appx. 105, 106 (3d Cir. Mar. 25, 2009) (“A party suing the federal government bears the burden of establishing that the United States has unequivocally waived its immunity from suit.”). Although the Court does not have the benefit of any response from Doss, the Government's arguments present significant challenges to Doss's ability to pursue his claims. At best, this Poulis factor is neutral, and all Poulis factors need not be satisfied to warrant dismissal. See Emerson, 296 F.3d at 190 (meritoriousness factor is neutral and not dispositive). Indeed, the Court of Appeals has never held that the sixth Poulis factor is determinative. See Hudson v. Coxon, 149 Fed.Appx. 118, 120 n.2 (3d Cir. 2005) (“We have never held that Poulis ' sixth factor is determinative. To do so would confuse Rule 12(b)6) with Rule 41(b), which we refuse to do.”). See also Kearney v. Hiber, 2014 WL 1234527 at *7 (M.D. Pa. Mar. 25, 2014) (“[W]hether a claim is meritorious [per Rule 12(b)(6)] is not determinative ... for involuntary dismissal.”) (citing Hudson, supra.). Therefore, on balance, the Poulis factors favor dismissal of this action for failure to prosecute.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that this action be dismissed based on Doss's failure to prosecute.
IV. Notice to the Parties Concerning Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), 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 (14) days thereafter in accordance with Local Civil Rule 72(D)(2).