Opinion
Civil ACTION 20-1514
07-14-2021
ROBERT P. GESCHKE, Plaintiff, v. WARDEN JOHN WALTON, DEPUTY WARDEN ERIC SCHWARTZ, DEPUTY WARDEN GEORGE LOWTHER, in their individual capacities, Defendants
District Judge W. Scott Hardy Magistrate Judge Maureen P. Kelly
Re: ECF No. 16
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Robert Geschke (“Plaintiff”) filed this pro se action arising out of allegations that Defendants John Walton (“Walton”), Eric Schwartz (“Schwartz”) and George Lowther (“Lowther”) (collectively, “Defendants”) violated his constitutional rights by preventing him from visiting with his children while he was confined at Westmoreland County Prison (“WCP”). ECF No. 8. Presently before the Court is Defendants' Motion to Dismiss. ECF No. 16. For the reasons below, it is respectfully recommended that the Motion to Dismiss be granted.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initiated this action by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”) on October 7, 2020. ECF No. 1. The Court entered a Deficiency Order, identifying certain deficiencies with Plaintiff's filing. ECF No. 3. After Plaintiff cured the deficiencies, the Court granted Plaintiff's IFP Motion on January 28, 2021, and his Complaint was filed on the same date. ECF Nos. 6 and 8.
In his Complaint, Plaintiff claims that he was incarcerated at WCP from October 16, 2017 until March 4, 2019. ECF No. 8 ¶ 10. Two of his children were born in July 2017, and they were placed in the custody of Indiana County Children and Youth Services (“CYS”). Id. ¶¶ 8, 9. The Court of Common Pleas of Indiana County issued an order directing visits between Plaintiff and his two children at WCP. Id. ¶ 11; ECF No. 8-1 at 2.
Plaintiff claims that Defendants obstructed his ability to see his children, including by refusing to recognize court orders from Indiana County instead of Westmoreland County, requiring him to complete a parenting program, and refusing to permit CYS personnel to enter the facility without providing Social Security numbers for a background check. ECF No. 8 ¶¶ 19-29. Plaintiff was unable to seek redress through the WCP grievance system. Id. ¶¶ 30-35.
When Plaintiff finally was able to see his children on August 21, 2018, the counselor cut his visit short because his daughter cried. Id. ¶¶ 37-38. Plaintiff later was informed that CYS was no longer permitted access to WCP to conduct visitations. Id. ¶ 39. Based on the foregoing, Plaintiff claims that Defendants violated his First, Fifth, Eighth and Fourteenth Amendments rights.
Defendants filed the instant Motion to Dismiss and Brief in Support on March 31, 2021. ECF Nos. 16 and 17. The Court ordered Plaintiff to respond by April 22, 2021. ECF No. 18. After this Order was returned as undeliverable, it came to the Court's attention that Defendants' Motion to Dismiss was served on Plaintiff at an address that differed from his address of record. As a result, the Court extended Plaintiff's response deadline until May 14, 2021 and ordered him to confirm his current address with the Court. ECF No. 19.
Plaintiff then moved for an extension of time to respond to the Motion to Dismiss. ECF No. 20. Although Plaintiff listed an address that differed from his address of record in the signature line to this motion, he did not request that his address of record be updated. The Court granted Plaintiff an extension of time until May 24, 2021 to file his response. ECF No. 21.
Plaintiff did not file a response by May 24, 2021. On June 14, 2021, the Court issued an Order to Show Cause, directing Plaintiff to show good cause by July 6, 2021 why his claims should not be dismissed based on his failure to respond to the Motion to Dismiss. ECF No. 22. The Court also ordered that Plaintiff prepare and return an attached “Notice of Current Address” form by the same date, to clarify Plaintiff's current address of record. Id.
The Orders at ECF Nos. 19 and 22 were mailed to Plaintiff's address of record and to the address identified in Defendants' Motion to Dismiss and the signature line of Plaintiff's Motion for Extension of Time to File Response/Reply.
To date, Plaintiff has not responded to the Motion to Dismiss or to the Order to Show Cause, and he has not submitted the “Notice of Current Address” form. For the reasons below, the Court should dismiss Plaintiff's claims based upon his failure to prosecute this action.
B. LEGAL STANDARD
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.
C. DISCUSSION
Upon consideration of the Poulis factors, Plaintiff's claims should be dismissed. First, as a pro se litigant, Plaintiff is solely responsible for prosecuting his claims. He is personally responsible for not responding to the Motion to Dismiss, for not complying with the Order to Show Cause, and for failing to update his address of record.
Second, Plaintiff's conduct has prejudiced Defendants. Plaintiff's failure to comply with this Court's orders and to update his contact information has delayed the timely resolution of Defendants' Motion to Dismiss.
As for the third and fourth factors, Plaintiff's failure to comply with the Court's orders represents a history of dilatoriness. Because it is Plaintiff's sole responsibility to prosecute his claims, his failure to keep the Court apprised of his current address or to comply with the Court's orders appears to be willful.
With respect to the sixth factor, the meritoriousness of Plaintiff's claims, “[g]enerally, in determining whether a plaintiff's clam is meritorious, [the Court] use[s] the standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim[, ]” such that “‘[a] claim [is] . . . meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff . . . .'” Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008) (citing Poulis, 747 F.2d at 869-70)). As discussed, Defendants filed a Rule 12(b)(6) Motion to Dismiss Plaintiff's Complaint, which Plaintiff has not opposed. Upon review, some or all of the Motion to Dismiss appears to be meritorious. Thus, this factor also weighs in favor of dismissal.
The final factor to consider is the effectiveness of sanctions other than dismissal. Because Plaintiff filed this action without the payment of the required filing fee, it does not appear that monetary sanctions are appropriate. Moreover, Plaintiff's failure to respond to the Order to Show Cause or to update his address of record, which has prevented this case from proceeding, suggests that Plaintiff has no serious interest in pursuing this case. Dismissal, therefore, is the most appropriate action for this Court to take. Mindek, 964 F.2d at 1373.
D. CONCLUSION
For these reasons, the Court should dismiss Plaintiff's claims based upon his failure to prosecute this action. Therefore, Defendants' Motion to Dismiss, ECF No. 16, should be granted.
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. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. 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.