Opinion
, 1:19-cv-00223-SPB-RAL (Erie)
05-10-2021
WARREN EASLEY, Plaintiff v. REUBERG, et al. Defendants
REPORT AND RECOMMENDATION
ECF NOS. 49 & 50
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectively recommended that die Defendants' Motions to Dismiss for Failure to Prosecute at ECF Nos. 49 and 50 be DENIED. It is further recommended, however, that all properly supported factual assertions in Dr. Renberg's Concise Statement of Material Facts (ECF No. 53) be deemed admitted for purposes of Dr. Renberg's Motion for Summary Judgment (ECF No. 51) based on Plaintiff Warren Easley's failure to file a responsive Concise Statement of Material Facts as required by LCvR 56(C)(1).
II. Report
Plaintiff Warren Easley (Easley), an inmate in the custody of the Pennsylvania Department of Corrections (DOC), initiated this lawsuit by filing pro se a motion to proceed in forma pauperis. ECF No. 1. His Complaint asserts civil rights claims pursuant to 28 U.S.C. § 1983 against several DOC employees and outside medical providers.
The Court previously denied without prejudice a motion to dismiss Easley's action for failure to prosecute filed by the Defendants Simons, Adams, Sawtelle, Gill, Reeher, and Oberlander (the Corrections Defendants). ECF No. 47, ¶ 10. These Defendants sought dismissal because Easley had not timely filed his pretrial statement. Id. Instead, the Court granted the alternative relief sought and gave the Corrections Defendants additional time to file a motion for summary judgment with leave to renew their motion if Easley failed to file his pretrial statement by December 29, 2020. ECF No. 48. When Easley failed to file a pretrial statement, both the Corrections Defendants and Dr. Renberg filed the pending motions to dismiss for lack of prosecution. ECF Nos. 49, 50.
The Court ordered Easley to respond to both motions by February 10, 2021 [ECF No. 55], but he failed to do so. He has yet to file a Pretrial Statement at all. He did, however, inform the Court on February 5, 2021, by his "Motion to correct the record," that he has had difficulty responding to Defendants' motions and Court orders because of Covid-19 pandemic restrictions at the prison and alleged issues with the mail. ECF No. 61, p. 2. The Court held a hearing by teleconference on the motions on March 1, 2021.
Easley did not appear at the hearing. ECF Nos. 64, 67. Apparently, this occurred because the teleconference conflicted with his pre-scheduled family visit by videoconference. Id. Easley informed the Court a couple of days later by a "Notice" that he was in fact attending a family visit. ECF No. 68. However, Easley contends that he could have attended both the family visit and the hearing if prison officials had allowed him to have a shorter family visit, which they did not, and he chose his family visit. Id. Easley still has not filed a pretrial statement. Additionally, Easley has failed to file a response to Dr. Renberg's motion for summary judgment which was due February 10, 2021. See ECF No. 56.
The undersigned has considered the six Poults factors and has determined that dismissal is not appropriate at this time. Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). A defendant may move to dismiss a claim against him where "the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order." Fed.R.Civ.P. 41(b). The court abuses its discretion where it fails to properly consider and balance factors as laid out in Poulis, namely:
(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, 747 F.2d at 868 (emphasis omitted). See also Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019). Courts in the Third Circuit have a strong "preference that cases be disposed of on the merits whenever practicable." Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (citations omitted). Moreover, before dismissing a case for failure to prosecute, the court must "identify on the record why dismissal, and not some lesser sanction, [is] appropriate in th[e] particular case." In re Lawson, 774 Fed.Appx. 58, 60 (3d Cir. 2019).
At this point, Easley's failure to comply with deadlines does not rise to the level necessary to dismiss his case. Although his failure to appear for the court's teleconference hearing on March 1, 2021 is troubling-particularly because this hearing concerned his failure to prosecute his case- missing one conference does not warrant the severe sanction of dismissal.. Even a plaintiffs refusal to attend a final pretrial conference on the eve of trial does not necessarily justify dismissal. See Briscoe v. Klaus, 538 F.3d 252, 264 (3d Cir. 2008) (district court abused its discretion in dismissing case when it failed to give plaintiff "full and fair opportunity to be heard regarding his failure to comply with the court's orders"). But the undersigned emphasizes to Mr. Easley that any willful failure to appear for a court-mandated hearing or conference in the future or any further unexcused failures to comply with filing deadlines will result in a recommendation of dismissal of his case.
Furthermore, Easley's continued failure to file a response to Renberg's motion for summary judgment should not be without consequences. Easley has not filed a response to Renberg's Concise Statement of Material Facts or a brief in opposition to the motion as required by Local Rule 56(C). Local Rule 56(C)(1) requires a party opposing a motion for summary judgment to file a responsive concise statement admitting or denying the facts of each numbered paragraph of the movant's concise statement and setting forth in separately numbered paragraphs any additional material facts upon which the non-movant relies in opposition to the motion-all with appropriate citations to the record. See LCvR 56(C)(1). See also Thomas v. Bronco Oilfield Servs., 2020 WL 7021474, at *1 n. 2 (W.D. Pa. Nov. 30, 2020); Fed.R.Civ.P. 56(c)(1) (a party asserting that a fact is genuinely disputed must support the assertion by citing to evidence in the record). Courts in the Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018), adopted by 2018 WL 5722316 (W.D. Pa. Nov. 1, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes p. Allegheny Cty. Airport Auth., 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).
A non-moving party "faces severe consequences for not properly responding to a moving party's concise statement." Hughes, 2017 WL 2880875, at *1. Any alleged material facts "set forth in the moving party's Concise Statement of Material Facts.. .which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." LCvR 56(E). See also Keith v. Charter Commc'ns, Inc., 2020 WL 2394997, at *2 (W.D. Pa. May 12, 2020). While courts provide some leniency to pro se litigants when applying procedural rules, the Court '"is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'" Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil p. United States, 508 U.S. 106, 113 (1993) (explaining that "we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel").
Because Easley has failed to file a responsive concise statement, all properly supported material facts stated in Renbefg's concise statement will be deemed admitted. LCvR 56(E). In addition, the undersigned will proceed to consider Renberg's motion without a brief from Easley in opposition to the motion. Although Easley belatedly asserted that COVID-19 restrictions at the prison impaired his ability to respond to motions and court orders, he did not make a timely request for extension of any deadline and generally has shown a disregard for procedural requirements, obligations and deadlines.
Finally, because the DOC Defendants have reasonably deferred the filing of a motion for summary judgment while the motions for dismissal based on Easley's failure to prosecute were pending, the deadline for the DOC Defendants to file a dispositive motion and supporting papers will be extended until June 15, 2021. Easley shall be ordered to file his response to any such motion and his opposing papers in accordance with Local Rule 56(C) on or before July 15, 2021. A separate order will be entered to confirm these deadlines.
III. Conclusion
For the foregoing reasons, it is recommended that the motions to dismiss from the Corrections Defendants and Dr. Renberg at ECF Nos. 49 and 50 be DENIED. It is further recommended that the undersigned proceed with consideration of Dr. Renberg's motions for summary judgment for report and recommendation proceed without Easley's brief in opposition to the motion and with all properly supported factual assertions in Dr. Renberg's concise statement of material facts deemed admitted.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may 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 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. Uhman, 637 F.3d 187, 194 n. 7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).