Opinion
Civil Action 2: 22-cv-0695
05-03-2023
CHRISTOPHER GLENN, Plaintiff, v. DOCTOR BURNSTEIN and UNKNOWN HIRING MANAGER / OPERATIONS MANAGER, Defendants.
CHRISTOPHER GLENN QN 9034 SCI PHOENIX 1200 Mokychic Drive Collegeville, PA 19426 (via U.S. First Class Mail) All Counsel of Record (via ECF electronic notification)
CHRISTOPHER GLENN QN 9034 SCI PHOENIX 1200 Mokychic Drive Collegeville, PA 19426 (via U.S. First Class Mail) All Counsel of Record (via ECF electronic notification)
Christy Criswell Wiegand United States District Judge
This case has been referred to the undersigned for a Report and Recommendation pursuant to pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil procedure 72(b).
Cynthia Reed Eddy United States Magistrate Judge
I. INTRODUCTION
Plaintiff, Christopher Glenn, a former prisoner at the Beaver County Jail, proceeding pro se, claims that defendants were deliberately indifferent to his serious medical condition. Defendants filed a motion for summary judgment. (ECF No. 36). Despite being ordered to do so, Plaintiff has not responded to the motion. (ECF No. 42). In fact, it appears that Plaintiff has abandoned this action. Accordingly, after analyzing the applicable factors, the undersigned concludes that the case should be dismissed based on Plaintiff's failure to prosecute the action. In the alternative, it is recommended that the motion for summary judgment filed by Defendants be granted.
At the time Plaintiff filed the Complaint, he was incarcerated at Beaver County Jail. On June 6, 2022, Plaintiff filed a Notice of Change of Address indicating he had been transferred to DOC custody and was housed at SCI Smithfield. On August 11, 2022, Plaintiff notified the Court that he had been transferred to SCI Phoenix. The DOC inmate locator reflects that Plaintiff's current location remains SCI Phoenix. See https://www.cor.pa.gov/Pages/default.aspx (last reviewed 5/3/2023).
II. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff initiated this action on May 10, 2022, by filing a Motion for Leave to Proceed in forma pauperis (the “IFP Motion”). Attached to the motion was a Complaint for Violation of Civil Rights, in which Plaintiff claimed to be both a pretrial detainee and a convicted and sentenced state prisoner. (ECF No. 1, ¶ III). The IFP motion was granted and the Complaint officially filed on May 11, 2022. (ECF Nos. 4 and 5). Named as defendants were the Warden and Deputy Warden of Beaver County Jail,Dr. Renee Rubinstein, the Medical Director at Beaver County Jail; and Beth Harris, the Medical Services Director at Beaver County Jail.Both Defendant Rubinstein and Defendant Harris are employees of Southern Health Partners, a third-party contractor that provides medical services to the prisoners at Beaver County Jail.
Defendants Shoupe and White were voluntarily dismissed by Plaintiff on January 4, 2023. (ECF No. 40).
Defendants have stated that Defendant Dr. Renee Rubinstein has been erroneously identified as “Doctor Burnstein.”
Defendants have identified the “Unknown Hiring Manager / Operations Manager” as Beth Harris, the Medical Services Manager.
After service had been effectuated, but before any responsive pleadings had been filed, Plaintiff moved to amend his complaint. (ECF No. 22). The motion was granted and Plaintiff was granted until September 23, 2022, to file an Amended Complaint. (ECF No. 26). Thereafter, Plaintiff requested three additional extensions in which to file an Amended Complaint, all of which were granted. (ECF Nos. 31, 33, and 35). Plaintiff was given an extension until December 7, 2022, to file an Amended Complaint. (ECF No. 35). To date, Plaintiff has not file an Amended Complaint. Thus, Plaintiff's operative pleading remains the original Complaint filed at ECF No. 5.
On December 21, 2022, Defendants Rubinstein and Harris filed the instant motion for summary judgment, along with a brief in support of that motion, a concise statement of material facts, and supporting documents. (ECF Nos. 36, 37, and 38). Plaintiff was ordered to file a brief in opposition to that motion no later than February 6, 2023. Plaintiff was advised that failure to file a brief in opposition may result in Defendants' motion being decided without the benefit of Plaintiff's response. (ECF No. 42).
On March 31, 2023, the parties were ordered to file an election form either consenting to the jurisdiction by the Magistrate Judge or electing to have a District Judge assigned to the case. The election forms were to be filed by April 28, 2023. (ECF No. 43).
To date, Plaintiff has not filed a brief or other documents in opposition to the pending motion for summary judgment and has not filed the election form. Nor has Plaintiff requested an extension of time to do so. In fact, Plaintiff has not filed anything in this action since the Voluntary Dismissal of Defendants Shoupe and White filed on January 4, 2023. The undersigned concludes that Plaintiff has abandoned this action, and after considering the relevant factors, recommends that the case be dismissed. In the alternative, it is recommended that the motion for summary judgment be granted on the merits.
III. DISCUSSION
A. Under the Local Rules of This Court, Plaintiff Should be Deemed Not to Oppose the Material Facts Set Forth in Defendants' Concise Statement of Material Facts
Local Rule 56(E) imposes an affirmative duty on a litigant to respond to the moving party's Concise Statement of Material Facts and provides that “[a]lleged material facts set forth in the moving party's Concise Statement of Material Facts . . . will be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.” In this case, Plaintiff has not denied the facts set forth in Defendants' Concise Statement of Material facts and has failed to file a brief in opposition to the pending motion for summary judgment. Nevertheless, Plaintiff's failure to file a brief in opposition alone is not sufficient for the court to dismiss the case. In Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991), the Court of Appeals for the Third Circuit reversed a district court's dismissal based on the pro se plaintiff's failure to obey the local rule of court. The Court of Appeals stated that failure to obey the local rule should not form the basis for dismissal without an analysis of the merits of the case. Id. at 30. And in Hernandez v. Palakovich, 293 Fed.Appx. 890, 895 (3d Cr. 2008), our Court of Appeals subsequently declined “to adopt an interpretation of Stackhouse under which a district court may dismiss a case solely because a plaintiff misses a briefing deadline set forth in a local rule or court-ordered briefing schedule.” Rather, the Court of Appeals directed that before dismissing a case as a sanction for failure to follow a court rule or court order, a court must consider the factors set forth in the seminal Poulis case. Id. at 894 (citing Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984); see also Shuey v. Schwab, 350 Fed.Appx. 630, 633 (3d Cir. 2009) (“Poulis has been cited too often and is too deeply ingrained in the jurisprudence of this court and the district courts of this circuit for a court to assume that a party's failure to respond to a motion to dismiss can be regarded as an abandonment of the claim. Poulis governs the District Court's decision to dismiss Shuey's claim, and it was an error to dismiss without first considering the Poulis factors.”). Thus, the undersigned turns to a consideration of the Poulis factors.
B. Consideration of the Poulis Factors Warrants Dismissal of this Case or in the Alternative, the Defendants' Motion for Summary Judgment Should Be Granted.
In Poulis, the Court of Appeals for the Third Circuit set forth the following six factors to be weighed in considering whether dismissal is proper:
(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. 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 these factors follows.
1. The extent of the party's personal responsibility.
A pro se litigant is personally responsible for failure to comply with the Court's rules and orders. In this case, Plaintiff is proceeding pro se and, as such, is responsible for the failure to file a brief in opposition to the pending motion for summary judgment, as ordered by the Court. There is no indication that Plaintiff failed to receive any of the orders the Court has mailed. Plaintiff is responsible for the failure to comply with the court order and is also responsible for the failure to litigate this case. This responsibility for the failure to comply is Plaintiff's alone.
2. Prejudice to the adversary
Examples of prejudice are “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possible irremediable burdens or costs imposed on the opposing party. Scarborough v. Eubanks, 747 F.2d 871, 878 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). “[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Id. In this case, Plaintiff's failure to litigate this case and comply with court rules and orders frustrates and delays resolution of this action, and so, such failure to litigate can be seen to prejudice the Defendants, who seek a timely resolution of the case.
3. A history of dilatoriness.
Plaintiff failed to file a brief in opposition to the pending motion for summary judgment. Moreover, he did so even after the Court ordered Plaintiff to do so. Additionally, Plaintiff failed to file an election form, after the Court ordered Plaintiff to do so. This is sufficient evidence, in the undersigned's view, to indicate that Plaintiff does not intend to proceed with this case.
4. Whether the party's conduct was willful or in bad faith.
Here, Plaintiff was ordered to file a brief in opposition to the motion for summary judgment and to file an election form, but did not do so. There is no indication on this record that Plaintiff's failure was the result of any excusable neglect. Thus, the conclusion that Plaintiff's failure to litigate this action leads to an inference that Plaintiff has willfully abandoned this case.
5. Alternative sanctions.
Plaintiff is proceeding IFP and there is no evidence to support a reasonable inference that Plaintiff would be able to pay monetary sanctions. Therefore, monetary sanctions, including attorney's fees and costs, would not be an effective sanction in this case.
6. Meritoriousness of the claim or defense.
In this inquiry, a claim will be deemed meritorious when the allegations of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. Given that Plaintiff has failed to respond to the statement of material facts submitted by Defendants in support of their pending motion for summary judgment, the facts set forth by Defendants are deemed admitted for purposes of the pending motion for summary judgment. And those facts show that Defendants are entitled to judgment as a matter of law. More specifically, those facts show that Defendants were not deliberately indifferent to Plaintiff's serious medical needs. Thus, the motion for summary judgment should be granted.
In sum, the Poulis factors weigh heavily in favor of dismissal. Plaintiff has abandoned this case. Thus, it is recommended that the Court dismiss the case. In the alternative, given that Plaintiff has not disputed any of the facts set forth by Defendants and based on the undisputed facts the Defendants are entitled to judgment as a matter of law, it is recommended that the Court grant the pending motion for summary judgment.
IV. CONCLUSION
Based on the discussion above, it is recommended that the Court dismiss this action in accordance with Federal Rule of Civil Procedure 41(b) or, in the alternative, grant Defendants' motion for summary judgment.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, as a non-electronically registered party, must file objections, if any, to this Report and Recommendation by May 22, 2023, and Defendants, because they are electronically registered parties, must file objections, if any, by May 18, 2023. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.3d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).