Opinion
Civil Action 2:19-1297
03-22-2023
MICHAEL GORRIO, Plaintiff, v. CORRECTIONAL OFFICER FRANCIS, et al.,
J. Nicholas Ranjan Judge.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that the Court dismiss the unidentified and unserved John and Jane Doe defendants without prejudice because Plaintiff Michael Gorrio failed to identify them and serve them with the Amended Complaint in accordance with Case Management Order (ECF 117) and Rule 4(m) of the Federal Rules of Civil Procedure.
II. Report
A. Relevant Background
Plaintiff, who is proceeding pro se, is a state prisoner in the custody of the Pennsylvania Department of Corrections who is currently housed at SCI Phoenix. The events in question in this lawsuit occurred between December 2018 and February 2020 when Plaintiff was housed at SCI Fayette.
Plaintiff commenced this action in October 2019. The Court granted his motion for leave to proceed in forma pauperis and his original complaint (ECF 6) was docketed. In May 2020, Plaintiff moved for leave to file an amended complaint, which the Court granted. (ECF 40, 41). Plaintiff filed the Amended Complaint (ECF 43), which is the operative pleading, in June 2020.
The Amended Complaint named as defendants thirty-four officials and employees of SCI Fayette. Plaintiff alleged in the Amended Complaint that the numerous defendants in this case engaged in a wide-ranging conspiracy to commit violations under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §§ 1961-1968. He also alleged that Defendants violated the Hobbs Act, 18 U.S.C. § 1951 and the Clayton Act, 15 U.S.C. §§ 12-15, and asserted numerous constitutional claims under 42 U.S.C. § 1983 as well as related state-law claims. Plaintiff also stated in the Amended Complaint that he seeks to bring claims against John and Jane Doe defendants who worked at SCI Fayette, including medical personnel and other correctional officers and lieutenants. (ECF 43, ¶¶ 7-8.)
Counsel for the named defendants entered her appearance and moved to dismiss the Amended Complaint in part under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF 78.) In this motion, Defendants sought dismissal of eleven of the seventeen causes of action Plaintiff brings in the Amended Complaint. Defendants did not move to dismiss Count B (“Deliberate Indifference to Safety”), Count C (“Deliberate Indifference to Healthcare”), Count D (“Excessive Use of Force”), Count I (“Deprivation of the Right to an Education and Property Interest”), Count J (“Assault and Battery”), and Count N (“Sexual Harassment”) insofar as they are asserted against Defendants in their individual capacity, do not seek injunctive relief, and do not assert violations of the Pennsylvania Constitution.
The undersigned later issued a Report and Recommendation (ECF 92) recommending that the Court grant in part and deny in part Defendants' motion and also dismiss three defendants named in the Amended Complaint pursuant to the PLRA's screening provisions. The Court adopted the Report and Recommendation as the opinion of the Court and, in relevant part, issued the following order:
(1) The [Defendants'] motion is GRANTED with prejudice, and without leave to amend, as to all of [Plaintiff's] official capacity claims, his claims for injunctive relief, and any claim for violation of the Pennsylvania Constitution.
(2) The motion is GRANTED with prejudice, and without leave to amend, as to as to Counts A, F, O, P, and Q of [Plaintiff's] amended complaint.
(3) The motion is GRANTED without prejudice, and with leave to amend, as to Counts E, G, H, L, and M.
(4) The motion is GRANTED IN PART and DENIED IN PART as to Count K. Specifically, the motion to dismiss Count K is DENIED as to Defendants Henry, Saxion, Ohrman, Cox, Twardzik, Regina, and Haines, but GRANTED without prejudice, and with leave to amend, as to all other Defendants. --
It is FURTHER ORDERED that Defendants House, Allen, and Rudzinski are DISMISSED from this action pursuant to the screening provisions of 28 U.S.C. § 1915(e)(2)(B)(ii).(ECF 96 at 1-2.) The Court also advised Plaintiff that he could file a second amended complaint to attempt to cure the pleading deficiencies with respect to those claims the Court dismissed without prejudice (Counts E, G, H, L, M, and part of Count K), or he could proceed on his current complaint, but only as to Counts B, C, D, I, J, and N. (Id. at 2.)
Plaintiff failed to comply with or seek an extension of time regarding multiple orders directing him to either file another amended complaint or file a notice advising the Court that he decided to proceed on his current Amended Complaint but only as to Counts B, C, D, I, J, and N. Accordingly, on December 6, 2021, the Court ordered that Plaintiff's claims in this case are limited to Counts B, C, D, I, J, and N. (ECF 115.)
Defendants then filed the Answer. (ECF 116.) On December 29, 2021, the Court issued the Case Management Order (ECF 117). In this order, the Court directed that Defendants provide to Plaintiff by January 28, 2022: (1) all incident reports, grievances records, disciplinary reports, investigative reports or other similar documents in their possession concerning the alleged incidents described by Plaintiff in the Amended Complaint; (2) all records in their possession regarding Plaintiff that relate to his claims; and (3) any information in their possession that would enable Plaintiff to identify the John and Jane Doe defendants. The Court also ordered that Plaintiff must move to amend his complaint to identify all John and Jane Doe defendants no later than March 30, 2022 and that all discovery must be completed by April 29, 2022.
On January 26, 2022, Defendants filed a notice stating that they complied with the directives of the Case Management Order and provided their initial discovery disclosures to Plaintiff, including documents in which “none of the names of any DOC staff were redacted so that Plaintiff may attempt to identify the John/Jane Defendants named in his Amended Complaint[.]” (ECF 118 at 2.)
On June 10, 2022, the Court issued an order (ECF 152) directing Plaintiff, who missed the deadline set forth in the Case Management Order to identify all John/Jane Doe defendants, to show cause why those unidentified and unserved defendants should not be dismissed from this case for failure to effect service on them under Rule 4(m). In Plaintiff's response (ECF 154), he asserted that he could not identify and serve the John and Jane Does because the discovery phase of this litigation was inadequate. He also challenged some orders issued by the undersigned on discovery matters.
Around this same time, and during the entire discovery phase of this case, Plaintiff filed many unsuccessful motions challenging the undersigned's case management and discovery-related orders. He also filed an appeal, which the Court of Appeals denied for lack of jurisdiction (ECF 159).
On November 16, 2022, the Court issued an order overruling Plaintiff's various objections to the undersigned's discovery-related orders. (ECF 166.)
The parties later agreed to mediate this case. Accordingly, on February 3, 2023, the case was referred to the pro se prisoner mediation program and the Court, with Plaintiff's consent, began the process of attempting to find volunteer counsel to represent him during the mediation process. (ECF 170, 171, 173.)
Plaintiff recently filed a motion with the Court stating that he no longer wants to participate in mediation and instead wants to proceed to a trial on his claims. (ECF 180.) Because he has the right to decline to participate in mediation, the Court granted this motion. (ECF 183.)
Thus, the case is ready to proceed to trial. Because discovery is closed and Plaintiff has not identified or served the John and Jane Doe defendants listed in the Amended Complaint, the Court should dismiss them without prejudice for failure to serve them in accordance with Rule 4(m).
B. Discussion
Rule 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m).
Plaintiff was given amble opportunity through discovery in this case to learn the identity of the John and Jane Doe defendants and file another amended complaint that named them by the deadline set forth in the Case Management Order. He did not do so. The 90-day period set forth in Rule 4(m) has long since expired and Plaintiff has not shown good cause for his failure to identify and effectuate service on the John and Jane Doe defendants. The Court should therefore dismiss these unnamed defendants without prejudice. See, e.g., Lemmons v. Doe, No. 1:20-cv-328, 2022 WL 2067577 (W.D. Pa. June 8, 2022) (Paradise Baxter, J.) (dismissing case without prejudice in accordance with Rule 4(m) “based upon Plaintiff's failure, without good cause shown, to effectuate timely service” of the complaint on John and Jane Doe defendants).
III. Conclusion
Based on the above, it is recommended that the Court dismiss the John and Jane Doe defendants without prejudice. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed 14 days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).