Opinion
Civil Action 24-674
12-04-2024
LEVI GIDDINGS, Plaintiff, v. M. J. ZAKEN, Superintendent', S. BUZ AS, Deputy Superintendent', MR. COULEHAN, Unit Manager, and MR. HURD, Counselor, Defendants.
Arthur J. Schwab, District Judge.
REPORT AND RECOMMENDATION
MAUREEN R KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41.
IL REPORT
Plaintiff Levi Giddings (“Plaintiff”) is a state prisoner currently incarcerated at the State Correctional Institution at Camp Hill (“SCI-Camp Hill”), in Camp Hill, Pennsylvania. This case was initiated with the receipt of Plaintiff s Motion and Declaration in Support of Motion to Proceed in Forma Pauperis, ECF No. 1, and attached Complaint, ECF No. 1-1, on May 6, 2024.
On May 7, 2024, this Court issued a Deficiency Order, ECF No. 2, identifying various filing deficiencies in light of the Federal Rules of Civil Procedure, statutory requirements, and/or our Local Rules and/or practices. Included with the Deficiency Order was the requirement for Plaintiff to file an amended complaint, as the initial Complaint, as submitted, did not comply with Rule 8 of the Federal Rules of Civil Procedure. The Deficiency Order explained in detail the information that Plaintiff should include in an amended complaint, and specifically instructed Plaintiff to recite allegations of fact as to how each named Defendant was personally involved in harming Plaintiff.
Plaintiff was ordered to cure these filing deficiencies, and was warned that failure to do so would result in dismissal of this case for failure to prosecute. ECF No. 2 at 5. A copy of the Deficiency Order was mailed to Plaintiffs address of record on May 7, 2024. Id. at 6.
Plaintiff failed to fully cure all of the filing deficiencies identified in the Deficiency Order - including filing an amended complaint. Accordingly, an Order to Show Cause was issued on July 11, 2024. ECF No. 5. Plaintiff was informed that failure to respond to the Order to Show Cause on or before August 12, 2024, would result in dismissal of this case. Id. at 1. The Order to Show Cause was mailed to Plaintiff along with another copy of the underlying Deficiency Order. IT at 2.
As of this date, Plaintiff has corrected some of the filing deficiencies identified in the Deficiency Order. See ECF Nos. 3, 4, 7, 8, and 9. However, he has not provided an amended complaint. As discussed below, the operative Complaint fails to state a claim because it does not allege personal involvement
A district court has the inherent power to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a plaintiffs failure to prosecute or to comply with an order of court. Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). “Under our jurisprudence, the sanction of dismissal is reserved for those cases where the plaintiff has caused delay or engaged in contumacious conduct. Even then, it is also necessary for the district court to consider whether the ends of justice would be better served by a lesser sanction.” IT
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the United States Court of Appeals for the Third Circuit set forth six factors to be weighed when considering whether dismissal of a case as a sanction for failure to prosecute or to obey pretrial orders. They are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure; (3) a history of dilatoriness; (4) whether the conduct of the party or 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, IT at 868. These factors must be balanced in determining whether dismissal is an appropriate sanction, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Consideration of the factors listed above is as follows.
(1) The extent of the party's personal responsibility.
Plaintiff is proceeding in this matter pro se, and alone is responsible for prosecuting this case and complying with orders of this Court. Plaintiff is solely responsible for failing to cure all of the identified deficiencies, including filing an amended complaint. ECF Nos. 2 and 3.
(2) Prejudice to the adversary.
The filing fee has not been paid, leave to proceed IFP has not been granted, and the Defendants have not been served the Complaint. There is no indication that any Defendant has been prejudiced unfairly by Plaintiff s conduct.
(3) A history of dilatoriness.
Plaintiff has failed to provide an amended complaint in response both to the Deficiency Order and the Order to Show Cause. This is sufficient evidence, in this Court's view, to indicate that Plaintiff does not intend to proceed with this case in a timely fashion.
(4) Whether the party's conduct was willful or in bad faith.
There is no indication on the record that Plaintiff s conduct to date was the result of any “excusable neglect,” Poulis, supra. The conclusion that his failure to respond to the order of this Court is willful is inescapable.
(5) Alternative sanctions.
Plaintiff currently is proceeding pro se, and there is no indication on the record that the imposition of costs or fees would likely be an effective sanction.
(6) Meritoriousness of the case.
Plaintiff has failed to plead a meritorious cause of action in the Complaint. Specifically, Plaintiff alleges in his Complaint that his rights under the Eighth Amendment were violated because prison staff placed him in a cage with another inmate who staff knew should not be in contact with Plaintiff, and failed to protect Plaintiff when he was assaulted by that inmate. ECF No. 1-1 at 3-4. Plaintiff was issued a misconduct report, which was dismissed on appeal. Id. at 4. Unnamed members of Program Review Committee then “demoted [his] program phase due to the dismissed misconduct. Id. at 4 and 5. Plaintiff alleges that he suffered “[m]ental anguish. Head and eye injuries[,]” presumably as a result of the assault. Id. at 5.
Plaintiff has not pleaded that any named Defendant was involved in placing him in the cage in which he was assaulted, or failed to protect him during the assault. Further, Plaintiff does not even allege that any named Defendant was involved in the decision to lower his program phase. As best as the undersigned can tell from the Complaint and the documents attached thereto, Defendants are named simply because they either broke the news of his demotion to him, or denied his grievances. Plaintiff was given opportunities to elaborate - and even was informed of the requirement to plead personal involvement in the Deficiency Order. ECF No. 2 at 2. Plaintiff has steadfastly chosen not to do so.
In order for Section 1983 liability to attach, a plaintiff must show that a defendant was personally involved in the deprivation of his or her federal rights. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Here, Plaintiff has not alleged personal involvement from any named Defendant, and thus fails to state a claim.
To the extent that he attempts to do so, Plaintiff further fails to state a claim with respect to supervisory liability as well. In cases involving a supervisory or reviewing defendant, personal involvement may be shown through “‘allegations of personal direction or of actual knowledge and acquiescence.'” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). In situations where a supervising official knowingly permits a continuing custom or policy that results in harm to a plaintiff, Section 1983 liability may attach. See Colburn v. Upper Darby Twp., 838 F.2d 663, 673 (3d Cir. 1988) (overruled in part on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). At a minimum, liability in such a case is appropriate “‘only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval to the offending subordinate.'” Colburn, 838 F.2d at 673 (quoting Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986)). Plaintiff has failed to allege facts that would support such a claim.
Furthermore, to the extent that any claim is based on a Defendant's review of Plaintiffs administrative grievances, such claims must fail as a matter of law. See, e.g., Pittman v. Corbett, No. 14-231, 2014 WL 783498, at *3 (E.D. Pa. 2014) (“[T]o the extent plaintiffs claims are based on the defendant's denials of grievances and/or inadequacies in and dissatisfaction with the grievance process, he has not stated a constitutional claim.”); Robinson v. Prison Health Services, Inc., No. 10-7165, 2014 WL 2452132, at *7 (E.D. Pa. 2014) (dismissing a plaintiffs due process claims because claims based on dissatisfaction with the grievance process fail as inmate does not have a constitutionally protected right to a grievance procedure); Robinson v. Varner, No. 12-6359, 2012 WL 6628108, at *1 (E.D. Pa. 2012) (“[P]laintiff cannot state a constitutional claim based on his dissatisfaction with the grievance process.”).
Thus, this Poulis factor weighs in favor of dismissal.
Because five of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute.
III. CONCLUSION
Based on the reasons set forth above, it respectfully is recommended that Plaintiff's Complaint be dismissed, without prejudice to refiling, under Rule 41.
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 days thereafter in accordance with Local Civil Rule 72.D.2.