Opinion
Civil Action 3:21-cv-165
06-13-2022
SHAWN GRENKE Plaintiff, v. ERIN HOWSARE, DENNIS VOUGHT, VARSHA PANDYA, BRIAN PELESKY, JACI SCHART, PRIME CARE MEDICAL, INC., SOMERSET COUNTY MUNICIPALITY And JOHN DOE, Defendants.
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that this case be dismissed for failure to prosecute.
II. REPORT
A. Procedural History
This civil action was instituted by Plaintiff by filing a motion for leave to proceed in forma pauperis. ECF No. 1. Plaintiff's Motion was granted (ECF No. 6) and the Complaint was docketed on September 23, 2021. ECF No. 8.
On January 12, 2022, Defendant Varsha Pandya filed a Motion to Dismiss/Motion for Summary Judgment and brief in support. ECF Nos. 31 & 32. On January 13, 2022, Defendants Brian Pelesky, Somerset County Municipality, and Dennis Vought filed a Motion to Dismiss and brief in support. ECF Nos. 33 & 34. On January 13, 2022, the Court ordered that Plaintiff respond to the motions by February 15, 2022, and February 28, 2022. ECF Nos. 36 & 37.
On January 14, 2022, Defendant Prime Care Medical, Inc. and Jaci Schart filed a Motion to Dismiss and brief in support. ECF Nos. 39 & 40. On January 17, 2022, the Court ordered that Plaintiff respond to the motion by February 18, 2022. ECF No. 41.
On January 24, 2022, the Clerk of Court received notice via email that Plaintiff was no longer in custody of the Department of Corrections.
On January 28, 2022, Defendant Erin Howsare filed a Motion to Dismiss and brief in support. ECF Nos. 44 & 45. On January 31, 2022, the Court ordered Plaintiff to respond to the motion by March 2, 2022, served him at his address of record and a second Johnstown address obtained from Defendant Howsare's Certificate of Service (ECF No. 44 at 5), and reminded him of his continuing obligation to notify the Court of any change of his address and the procedure for doing so. ECF No. 46. The Order was returned on February 9, 2022, as “Refused-Unable to Forward” with “Paroled” written on the envelope.
On February 22, 2022, Plaintiff filed a Notice of Change of Address. ECF No. 48. On February 23, 2022, Plaintiff filed a Motion for Extension of Time to File a Response. ECF No. 49. The Court granted the motion in part and granted Plaintiff a 60-day extension of time rather than the 90 days requested. Plaintiff's Response to the Motions was due on May 2, 2022. ECF No. 50. No responses were filed by that date. Finally, two weeks later, on May 16, 2022, the Court entered an Order to Show Cause why this case should not be dismissed for failure to comply with the Court's Order requiring Plaintiff's response to the Motions to Dismiss to be filed by May 2, 2022. The Court gave Plaintiff until June 1, 2022, to respond to the Motions at ECF Nos. 31, 33, 39 & 44, and warned that failure to so respond may result in the dismissal of the Complaint for failure to prosecute. As of this date, no responses have been filed.
B. Discussion
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim. It provides that:
[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.
Sua sponte dismissal
“Under Rule 41(b), a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order.” Qadr v. Overmyer, No. 15-3090, 642 Fed.Appx. 100, 102 (3d Cir. 2016) (per curiam) (citing Fed.R.Civ.P. 41(b)); see also Adams v. Trustees of N.J. Brewery Emps. Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (“The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b).”)
The Third Circuit Court of Appeals has stated that “a district court dismissing a case sua sponte ‘should use caution in doing so because it may not have acquired knowledge of the facts it needs to make an informed decision.'” Qadr v. Overmyer, 642 Fed.Appx. 100, 103 (quoting Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008)). Before engaging in a sua sponte dismissal, “the district court ‘should provide the plaintiff with an opportunity to explain his reasons for failing to prosecute the case or comply with its orders.'” Id. (quoting Briscoe, 538 F.3d at 258).
Here, Plaintiff has been advised that absent affirmative indication of his desire to proceed with the litigation on or before June 1, 2022, the Court would recommend that the case be dismissed with prejudice. The Court issued an Order to Show Cause on May 16, 2022. Having been given ample opportunity, Plaintiff has failed to provide any response or information that would account for failure to move this litigation forward.
The Poulis Factors
In Poulis v. States Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit Court of Appeals set forth the following six factors to be weighed in considering 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.
Id. at 868 (emphasis omitted). In balancing the Poulis factors, no single factor is dispositive, nor do all factors need to be satisfied to result in dismissal of the complaint. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). However, in determining whether a dismissal is warranted, the Court must analyze the factors in light of the “strong policy favoring decisions on the merits.” Hildebrand v. Allegheny Cnty., 923 F.3d 128, 132 (3d Cir. 2019). The Third Circuit has emphasized that “dismissals with prejudice or defaults are drastic sanctions, termed ‘extreme' by the Supreme Court,” and that they “must be a sanction of last, not first, resort.” Poulis, 747 F.2d at 867-68, 869 (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)). “Cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand, 923 F.3d at 132.
Application of the Poulis Factors
1. The extent of the party's personal responsibility
“[I]n determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal.” Adams v. Trs. of the N.J. Brewery Emps. Pension Tr. Fund, 29 F.3d 863, 873 (3d Cir. 1994). In determining personal responsibility for the delay, the Court must distinguish “between a party's responsibility for delay and counsel's responsibility.” Hildebrand, 923 F.3d at 133 (citing Poulis, 747 F.2d at 868). A plaintiff is not conjecturally responsible for her counsel's delay. Id. Any doubt as to personal responsibility should be resolved “‘in favor of reaching a decision on the merits.'” Id. at 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Here, Plaintiff is proceeding pro se, so the responsibility for failing to comply with Court orders is his alone. Thus, this factor weighs in favor of dismissal.
2. Prejudice to the adversary
Prejudice to the adversary is a substantial factor in the Poulis analysis; but like any other factor, it is not dispositive. Hildebrand, 923 F.3d. at 134. “Relevant examples of prejudice include ‘the irretrievable loss of evidence[] [and] the inevitable dimming of witnesses' memories.'” Id. (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). A party is not required “to show ‘irremediable' harm for [this factor] to weigh in favor of dismissal.” Id. (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). If the opposition is unable to prepare “a full and complete trial strategy” then there is sufficient prejudice to favor dismissal. Id. (citation omitted).
Here, with the passage of time, the ability to gather facts and documents to defend the case will diminish. Depending upon when Plaintiff chooses to comply with court orders, Defendants could suffer prejudice if the case were put on hold indefinitely until Plaintiff decides to comply. Thus, this factor weighs in favor of dismissal.
3. A history of dilatoriness
A history of dilatoriness is generally established by repeated “delay or delinquency.” Adams, 29 F.3d at 874. While once or twice is normally insufficient, this factor weighs in favor of dismissal where the plaintiff has a history of repeated delay. Hildebrand, 923 F.3d at 135 (citation omitted). In addition to repeated acts, “extensive” delay can also create a history of dilatoriness. Adams, 29 F.3d at 874. A “failure to prosecute” does not require that plaintiff take affirmative “steps to delay the trial .. It is quite sufficient if [he/she] does nothing .... ” Id. at 875 (citation omitted).
“While extensive delay may weigh in favor of dismissal, ‘a party's problematic acts must be evaluated in light of its behavior over the life of the case.'” Hildebrand, 923 F.3d at 135 (quoting Adams, 29 F.3d at 875). Thus, where a plaintiff has not been previously delinquent the weight given even a long delay should be mitigated. Id.
Here, Plaintiff has been given repeated opportunities to respond to the various motions to dismiss and has filed nothing with the Court to suggest that those responses may be forthcoming. Plaintiff has repeatedly failed to comply with Court Orders establishing deadlines for responses. By failing to provide these responses, Plaintiff has made it clear to the Court that he no longer wishes to pursue this civil action. Thus, this factor weighs in favor of dismissal.
4. Whether the party's conduct was willful or in bad faith
In determining if plaintiff's conduct constituted willful or bad faith, the “court should look for ‘the type of willful or contumacious behavior' that can be characterized as ‘flagrant bad faith,' such as [a case history of] failing to answer interrogatories for nearly a year and a half, demanding numerous extensions, ignoring admonitions by the court, and making false promises to correct delays.” Id. (citing Scarborough, 747 F.2d at 875 (citation omitted)). “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Although “[a] lengthy delay reflects ‘inexcusable negligent behavior,' id. at 876, . . . that behavior alone does not rise to the level of willfulness or bad faith.” Hildebrand, 923 F.3d at 135.
Finally, “[b]ecause the harsh sanction of dismissal should serve to deter bad faith or selfserving behavior, and because of our policy of favoring decisions on the merits, [in the absence of evidence] that the delay was not effectuated willfully or in bad faith, [this factor] should weigh against dismissal.” Id. at 136.
There is no indication on this record that the Plaintiff's failure to comply with this Court's numerous orders was the result of any excusable neglect. In fact, although under no obligation to do so, the Court attempted to locate a current address for the Plaintiff and served him at that address as well as his address of record. Therefore, a finding of willfulness for failing to comply with the Court's various Orders is inescapable. Therefore, this factor weighs in favor of dismissal.
5. Effectiveness of sanctions other than dismissal
A district court must thoroughly consider “alternative sanctions before dismissing a case with prejudice.” Id. (citing Briscoe, 538 F.3d at 262). The court should also provide an analysis of effectiveness sufficient “to honor [the] longstanding tradition of favoring decisions on the merits.” Id. In so doing, the court should be mindful that “[a]lternatives are particularly appropriate when the plaintiff has not personally contributed to the delinquency.” Poulis, 747 F.2d at 866 (citations omitted). “[A]lternative sanctions need only be effective toward mitigating the prejudice caused by dilatory behavior or delinquency.” Hildebrand, 923 F.3d at 136. They are not required to be “completely ameliorative.” Id.
Because the Plaintiff will simply not communicate with the Court by responding to the Court's Orders or otherwise, it is unlikely that any sanction imposing costs or fees upon him would be effective. Therefore, the Court can see no alternative sanction that would be appropriate other than dismissal.
6. Meritoriousness of claim or defense
“The standard for determining whether a plaintiff's claims are meritorious ‘is moderate.'” Adams, 29 F.3d at 876. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not a summary judgment standard, is applicable in a Poulis analysis. Id. at 869-70.
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” (Fowler [v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (citation omitted)]; see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18, (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
It is unclear from Plaintiff's Complaint whether he is able to make out an Eighth Amendment claim for deliberate indifference to serious medical needs as to Defendants. Plaintiff's claims against Defendant Dr. Pandya are vague to the extent that he does not allege her personal involvement in the delivery of his medical care. And to the extent that his claim can be attributable to her, Plaintiff appears to be disagreeing with the course of treatment he was provided. Clearly, Plaintiff cannot succeed on an Eighth Amendment claim for deliberate indifferent to serious medical needs on this basis. Similarly, his claims against the County Defendants and Primecare Medical would appear to fail for the same reasons, and because there is no respondeat superior liability as to his § 1983 claims. In addition, it appears that he is unable to state a Monell claim against them. Finally, as to Defendant Howsare, she is an administrator with Somerset Single County Authority for Drug and Alcohol. She is not a medical provider.
As the majority of the Poulis factors do weigh in favor of dismissal, and that whether Plaintiff can succeed on his claims is unclear at this early stage of the case, it is recommended that this civil action be dismissed for failure to prosecute.
III. CONCLUSION
For the above reasons, it is respectfully recommended that this case be dismissed for failure to prosecute.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.