Opinion
Civil Action 2:21-cv-1330
05-19-2023
JAMAR GASTON, Plaintiff, v. CHARLEROI REGIONAL POLICE DEPARTMENT; WILLIAM GOODWIN; and OFFICER BAKEWELL, Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that Defendants Charleroi Regional Police Department, William Goodwin and Officer Bakewell's Motion to Dismiss Plaintiff Jamar Gaston's Complaint for Failure to Prosecute, Failure to Cooperate in Completing Discovery, Failure to Comply with Orders of the Court and Failure to Appear for a Scheduled Deposition pursuant to Federal Rules of Civil Procedure 41(b) and 37 (ECF No. 49) be granted and that this action be dismissed.
II. REPORT
A. Relevant Background
Plaintiff Jamar Gaston, proceeding pro se and in forma pauperis, commenced this suit on October 5, 2021 alleging violations of his Fourth Amendment, Fifth Amendment, Eighth Amendment, and Fourteenth Amendment rights as well as making a claim of defamation. (ECF No. 4.) These claims arise out of an incident in which Defendants Goodwin and Bakewell assaulted him and did not provide any medical care when he was taken to jail in handcuffs. (Id.) Gaston also appears to make a failure to train claim against Defendant Charleroi Regional Police Department. (Id.) Defendants filed an answer the complaint (ECF No. 15), and the parties proceeded to discovery.
The June 16, 2022 case management order set the end of fact discovery as October 14, 2022. (ECF No. 19.) Since setting that deadline, discovery has been extended four times (ECF Nos. 25, 31, 42 & 44) to April 4, 2023, at which point Defendants filed a motion to stay discovery to file the current motion. (ECF Nos. 45, 46 & 49.) As detailed below, each extension of the discovery deadline was attributable to Gaston.
1. First Discovery Extension
The day before the original discovery deadline of October 14, 2023, the parties jointly filed a motion to extend discovery due to Gaston's tardy discovery responses. (ECF No. 24.) On September 26, 2022, Defendants advised Gaston that his responses to their July 27, 2022 written discovery were overdue. (ECF No. 24 ¶¶ 5-6; ECF No. 49 ¶ 13; ECF No. 49-1 at 4.) Although Gaston advised that he sent the request via mail, Defendants did not receive them, so on October 3, 2022 Gaston forwarded written discovery responses to Defendants and, around that time, also served written discovery requests of Defendants. (ECF No. 24 ¶¶ 7-10; ECF No. 49 ¶¶ 14-16; ECF No. 49-1 at 5.) Thus, on October 14, 2023, the Court granted the parties' motion for an extension of the fact discovery deadline until November 28, 2022. (ECF No. 25.)
2. Second Discovery Extension
Thereafter, on October 21, 24, and 25, 2023 Counsel for Defendants asked that Gaston cure the deficiencies in his discovery responses and asked him to provide dates for his deposition. (ECF No. 49 ¶¶ 19-20; ECF No. 49-1 at 6-8.) Following receipt of Defendants' letter requesting assistance in their discovery dispute (ECF No. 49-1 at 9-12), the Court conducted a telephonic conference on October 31, 2022 to address multiple discovery issues, including “Plaintiff's failure to respond to multiple efforts to meet and confer; the adequacy of Plaintiff's responses to certain interrogatories; the lack of a verification accompanying these responses; the failure to provide a written response to Defendants' request for production of documents; production of incomplete documents; and a request that Plaintiff provide complete responses about his medical treatment for his claimed injuries in this case.” (ECF No. 27.) Gaston was advised of his obligation to promptly respond and confer with Defendants as well as his obligation of candor to the Court in light of his shifting representations as to whether he “was receiving assistance from a ‘pro bono lawyer.'” (Id.) The Court then ordered Gaston to provide complete responses to certain of Defendants' interrogatories, a verification of his prior answers to interrogatories, a written response to Defendants' request for production and responsive documents to such request. (ECF No. 28.) The Court also ordered the parties to agree to a date for Gaston's deposition. (Id.)
On November 2, 2022, defense counsel notified Gaston that his deposition was set for November 23, 2022 (ECF No. 49 ¶ 23; ECF No. 49-1 at 17), but Gaston said that he would be outside of Pennsylvania for the whole month of November due to a conference though he could participate in a virtual deposition. (ECF No. 49 ¶¶ 24-26; ECF No. 49-1 at 18-19.) Gaston refused to provide Defendants with information on the conference when requested. (ECF No. 49 ¶¶ 2627; ECF No. 49-1 at 20.)
Later, on November 14, 2022, after counsel for Defendants advised Gaston that the deadline to meet and confer on his deposition date was approaching, Gaston advised Defendants that he intended to file a motion for appointment of counsel and instructed defense counsel not to have further contact with him. (ECF No. 49 ¶¶ 29-30; ECF No. 49-1 at 21-22.)
On November 15, 2022, the Defendants requested judicial intervention (ECF No. 49-1 at 23-27), and the Court held a telephonic conference the same day (ECF No. 30.). Because Gaston had not complied with the Court's prior order related to discovery (ECF No. 28), the Court ordered him again provide the discovery responses and set dates for depositions. (ECF Nos. 30 & 31.) At the telephonic conference, Gaston “represented that he did not receive the October 31, 2022 order until either just before or just after the first of several deadlines imposed in the order, which was November 8, 2022,” and that he was “currently in Baltimore for a conference and will return on December 1, 2022.” (ECF No. 30.) However, Gaston was unable to state when he arrived in Baltimore and gave conflicting information as to how he received his mail at his address of record. (Id. (noting that Gaston stated “both that he retrieved the order in his mail (which he represents that he checks on a daily basis) and that his father retrieved it and forwarded it to him.”).) As a result, Gaston provided his email address for all further orders to be mailed and emailed to him. (Id.) The Court then extended the deadline for the completion of fact discovery to January 12, 2023. (ECF No. 31.)
3. Third Discovery Extension
Thereafter, Defendants also repeatedly remined Gaston of his deficiencies in his discovery responses (ECF No. 49 ¶¶ 42-43; ECF No. 49-1 at 34-42). The parties scheduled dates for three fact witness depositions on January 5, 2023 and scheduled Gaston's depositions for January 6, 2023. (ECF No. 49 ¶¶ 39-40; ECF No. 49-1 at 31.) On January 5, 2023, Defense counsel reminded Gaston of both the fact witness depositions and his deposition. (ECF No. 49 ¶¶ 44-46; ECF No. 49-1 at 43.) Gaston confirmed his understanding that he was required to attend his deposition the next morning. (ECF No. 49 ¶ 46; ECF No. 49-1 at 44.)
Defense counsel arrived at the Charleroi Borough Building on January 6, 2023, at approximately 9:15 AM for Plaintiff's deposition scheduled for 10:00 AM, however Gaston did not appear. (ECF No. 49 ¶¶ 49-55; ECF No. 49-2.) Defense counsel waited until approximately 11:00 am and contacted Gaston via email before leaving. (ECF No. 49 ¶¶ 56-57; ECF No. 49-2.) Gaston responded that he made an error on the start time, believing it was 1:00 PM instead of 10:00 AM and made several last-minute attempts to reschedule for later that same day. (ECF No. 49 ¶¶ 58-60; ECF No. 49-1 at 45-46.)
On January 10, 2023, defense counsel contacted the court to request judicial intervention. (ECF No. 49-1 at 49-51.) The Court held the fact discovery deadline in abeyance and conducted a telephonic discovery conference on January 17, 2023. (ECF No. 39; ECF No. 40.) Gaston did not initially appear for the telephonic discovery conference on January 17, 2023 until an email was sent to him. (ECF No. 41.) The Court extended discovery until March 3, 2023 for the limited purpose of scheduling Gaston's deposition and depositions of two subpoenaed witnesses who had not appeared to their own deposition. (ECF Nos. 41 & 42.)
4. Fourth Discovery Extension
Gaston's deposition was scheduled for February 22, 2023, but Gaston notified counsel that he was not available because he had a vacation planned. (ECF No. 43 ¶¶ 6-8; ECF No. 49 ¶¶ 6566; ECF No. 49-1 at 54-58.) Therefore, on February 17, 2023, the parties sought an extension of the discovery date until April 4, 2023 to accommodate Gaston's previously scheduled vacation date (ECF No. 43), which the Court granted (ECF No. 44).
5. Motion to Stay Discovery
On February 21, 2023, defense counsel requested that Gaston provide dates for his deposition, and Gaston confirmed that he would do so. (ECF No. 49 ¶¶ 68-70; ECF No. 49-1 at 57-58.) Ultimately, Gaston did not provide alternative dates, and defense counsel repeatedly contacted him on March 1, 5, 7, and 9, 2023. (ECF No. 49 ¶ 71; ECF No. 49-1 at 59-62.) Gaston did not respond, so on March 14, 2023, defense counsel served him with a notice of deposition setting his deposition date to March 28, 2023. (ECF No. 49 ¶ 72; ECF No. 49-1 at 63-65.) Thereafter, defense counsel contacted Gaston three more times related to his deposition and discovery responses. (ECF No. 49 ¶¶ 73-75; ECF No. 49-1 at 66-69.)
On March 28, 2023, counsel traveled to Charleroi for the deposition. (ECF No. 49 ¶ 76.) Plaintiff failed to appear for his deposition again. (ECF No. 49 ¶¶ 77-78; ECF No. 49-3.)
Around March 31, 2023, defense counsel learned that Gaston was arrested and incarcerated at the Washington County Jail. (ECF No. 49 ¶ 80.) Notwithstanding his arrest, from February 21, 2023 through March 21, 2023, Gaston had failed to contact counsel to comply with the Court's orders regarding the completion of fact discovery (which he had already failed to comply with twice) and the scheduling of his deposition. (Id. ¶¶ 81-83.) Thus, Defendants sought to stay discovery to allow Defendants to file the currently pending motion, which the Court granted. (ECF Nos. 45 & 46.)
After defense counsel advised the Court that he confirmed that Gaston was in fact in custody at Washington County Correctional Facility, the Court, as a courtesy, mailed Gaston the order granting the stay of discovery and setting the deadlines to allow Defendants to file appropriate motions including a motion to dismiss (ECF No. 46), as well as an order reminding Gaston of his continuing obligation to notify the Court of any address changes (ECF No. 47) to Gaston's address on file as well as the Washington County Correctional Facility. (ECF No. 48.) Further, Gaston receives notifications of electronic filings at his email account. (ECF No. 30.)
In the pending Motion, Defendants seek an order dismissing Gaston's complaint for failure to comply with court orders, to attend his deposition, and to prosecute his case under Rule 41(b) and Rule 37(d). (ECF No. 49 ¶¶ 84-85.) In the alternative, they seek “attorney's fees, travel expenses, the cost of securing a court reporter for Plaintiff's March 28, 2023, deposition, and reasonable attorney's fees for counsel's time spent litigating numerous discovery disputes with Plaintiff and before this Court.” (Id. ¶ 86.) Gaston received notice of the pending Motion at both the Washington County Correctional Facility address as well as notifications of electronic filings at his email account. (ECF No. 49 at 17.) In addition, the Court ordered Defendants to serve Gaston a copy of their Motion at his home address, even though he was already served with the motion via email and at the Washington County Correctional Facility. (ECF No. 51 & 52.)
Gaston had a response deadline of May 16, 2023. (ECF No. 46.) The Court also reminded Gaston of his response date of May 16, 2023 and obligation to update his address in its Order requiring Defendants to serve the pending Motion on Gaston's home address. (ECF No. 51.) Since Defendant's motion to stay discovery was granted, Gaston has received three copies of the Defendants' filings and the Court's orders (Washington County Correctional Facility, home address, and email address). (ECF Nos. 46, 47, 48, 49, 50, 51 & 52.)
Gaston did not file a response to Defendants' Motion or seek an extension by May 16, 2023. Defendants' Motion is now ripe for disposition.
B. Discussion
“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.'” Hildebrand v. Allegheny Cnty., 923 F.3d 128, 131-32 (3d Cir. 2019) (citing Fed.R.Civ.P. 41(b)).
A district court should weight the following six Poulis factors when determining whether dismissal is proper under Rule 41(b):
(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.Hildebrand, 923 F.3d at 132 (citing Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphasis omitted)).
The same factors apply to dismissals under Rule 37(d) for a party's failure to attend their deposition, which Defendants invoke as a supplemental reason for dismissal (see ECF No. 49 at 15; ECF No. 50, at 4-5, 14). Fed.R.Civ.P. 37(d)(1)(A)(i), (3) (citing Fed.R.Civ.P. 37(b)(2)(A)(i)-(vi)); see Fed.R.Civ.P. 37(b)(2)(A)(v) (allowing the court to issue an order “dismissing the action or proceeding in whole or in part”).
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). None of the Poulis factors are dispositive and not all of them need to weigh in favor of dismissal before it is warranted. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Rather, the Court must “properly consider and balance” each of the six factors based on the record. Hildebrand, 923 F.3d at 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). It must also analyze these factors in light of the “strong policy favoring decisions on the merits.” Id.
The first and fourth Poulis factors-the extent of Gaston's personal responsibility and whether his conduct is willful-each weigh heavily in favor of dismissal. Gaston is proceeding pro se and is solely responsible for his own conduct. See, e.g., Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002); Winston v. Lindsey, No. 1:09-cv-224, 2011 WL 6000991, at *2 (W.D. Pa. Nov. 30, 2011). Gaston has not communicated with the Court since the parties' joint motion to extend discovery in February 2022 (ECF No. 43); has not contacted defense counsel since February 21, 2023 (ECF No. 49 ¶ 81; ECF No. 45 ¶¶ 31-59); has repeatedly failed to comply with any of the Court's orders directing him to respond to Defendants' discovery requests (ECF Nos. 28 & 31); and has failed to show up to his deposition twice (ECF No. 49 ¶¶ 51, 78; ECF No. 492; ECF No. 49-3).
Additionally, there is no reason to believe that Gaston is not receiving the Court's orders because none of them have been returned as undeliverable, nor is there reason to believe that he is prevented from filing documents with this Court. As described above, since Defendants' Motion to stay was granted, the Court and Defendants have gone to great lengths to ensure that Gaston has received three copies of each of the Defendants' filings and the Court's orders at the Washington County Correctional Facility, at his home address, and via email. (ECF Nos. 46, 47, 48, 49, 50, 51 & 52.) Under the circumstances, the Court must conclude that Gaston's decision not to communicate with the Court and comply with Court orders is intentional. See, e.g., Quadr v. Overmyer, 642 Fed.Appx. 100, 103 (3d Cir. 2016) (the district court correctly concluded that the plaintiff's actions were willful when he would not accept mail from the court, failed to respond to a motion to dismiss, and repeatedly missed deadlines). Thus, the first and fourth Poulis factors each weigh heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. “Examples of prejudice include ‘the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.'” Adams v. Trs. of the N.J. Brewery Employees' Pension Tr. Fund, 29 F.3d 863, 874 (3d Cir. 1994) (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). Although this factor does not weigh heavily in favor of dismissal at this time, it is not neutral either. Gaston's claims arise out of an incident that took place in October 2019-more than three and a half years ago. Since those events, Gaston's repeated conduct of missing deadlines, failure to participate in discovery, and his failure to communicate with the Defendants and the Court frustrates and delays resolution of his claims against all Defendants. For example, Gaston's has failed to appear for his deposition twice after already having sought multiple extensions to accommodate his conference attendance (for which he provided only few (contradictory) details) (ECF No. 30) and vacation schedule (ECF No. 43 ¶¶ 6-8). Mackv. United States, No. 3:17-cv-1982, 2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019) (plaintiff's continued failure to communicate with the district court and inaction “clearly prejudices the Defendants who seek a timely resolution of the case.”). Thus, the second Poulis factor weighs in favor of dismissal.
The third Poulis factor considers whether there is a history of dilatoriness. “[E]xtensive or repeated delay or delinquency constitutes a history of dilatoriness[.]” Adams, 29 F.3d at 874. “A party's problematic acts must be evaluated in light of its behavior over the life of the case[,]” id. at 875, and, typically, “conduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness.'” Briscoe, 538 F.3d at 261 (citing Scarborough, 747 F.2d at 875, and Donnelly v. Johns-Manvill Sales Corp., 677 F.2d 339, 343 (3d Cir. 1982)). Gaston has failed to comply with the Court-ordered discovery deadlines, failed to appear for his deposition twice, appeared late for a Court's telephonic conference, not responded regularly to defense counsel (despite repeated reminders to do so), and not communicated with the Court in any way since February 2023. Further, as outlined above, his conduct has necessitated repeated extensions of the discovery deadline. For these reasons, the third Poulis factor weighs in favor of dismissal.
The fifth Poulis factor requires the Court to consider the effectiveness of sanctions other than dismissal. Under the circumstances presented here, in which Gaston has failed to comply with court orders, no longer communicates with the Court, and appears to have abandoned the litigation, alternative sanctions would not be effective. Bowie v. Perry, No. 1:19-cv-13, 2019 WL 2412488, at *2 (W.D. Pa. May 13, 2019) (“alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court.”), report and recommendation adopted by 2019 WL 2410796 (W.D. Pa. July 7, 2019). Moreover, it is well-established that alternative, monetary sanctions are ineffective where, as is the case here, the plaintiff is indigent. See, e.g., Brennan v. Clouse, No. 2:11-cv-0146, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) (“Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.”) (citing Emerson, 296 F.3d at 191). As such, this factor weights in favor of dismissal.
When evaluating the sixth Poulis factor, the Court must consider the potential merits of Gaston's claims. A claim will be deemed meritorious “when the allegations of the pleadings, if established at trial, would support recover by plaintiff.” Poulis, 747 F.2d at 869-70. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not the summary judgment standard, is applicable in the Poulis analysis. Briscoe, 538 F.3d at 263. Gaston's failure to prosecute this action and the limited factual assertions related to his claim on his Complaint (ECF No. 4) make it difficult to determine whether his Fourth Amendment, Fifth Amendment, and Fourteenth Amendment claims as well as a claim of defamation asserted against Defendants have, or could have, potential merit. However, Defendants argue that Gaston has “elected to conduct almost no discovery in this case, including making no effort to schedule depositions of fact witnesses,” including Defendants. (ECF No. 50 at 13.) Thus, this final Poulis factor does not weigh heavily in favor of dismissal, yet it does weigh slightly in favor of dismissal in light of the paucity of facts alleged in Gaston's Complaint and his failure to depose the named Defendants in the suit or otherwise conduct discovery. However, as set forth above, none of the Poulis factors are dispositive and not all of them need to be met for a district court to find that dismissal is warranted.
Gaston's Eighth Amendment claim, however, is meritless as he was not a convicted prisoner at the time of the incident. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“[The] State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.”).
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that that Defendants' Motion (ECF No. 49) be granted and that this action be dismissed.
IV. NOTICE
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen days. 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).