Opinion
Civil Action 20-cv-01559
07-07-2022
STANLEY LEE HERRING, Plaintiff, v. FAYETTE COUNTY PRISON, WARDEN MYERS, SGT MYERS, SGBT BRANSON, Defendants.
Robert J. Colville District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that this case be dismissed for failure to prosecute.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Stanley Lee Herring (“Plaintiff') brings a pro se civil rights action under 42 U.S.C. § 1983, alleging claims against Defendants Fayette County Prison (“FCP”); Warden Jeffrey Myers (“Warden Myers”); SGT Myers, SGT Branson, John Doe Ron, and Jane Doe Tracy (collectively “FCP Defendants”) for their failure to protect Plaintiff from sexual assaults during his incarceration at the Fayette County Prison, as well as their deliberate indifference to Plaintiff s physical injuries and mental illness.
By Order entered October 4, 2021, Defendants' Partial Motion to Dismiss was granted as to Plaintiffs Fourth Amendment, procedural and substantive due process, equal protection, and ADA claims. ECF No. 52. These claims were dismissed with prejudice. Id. Plaintiff s claims for declaratory and injunctive relief, as well as for punitive damages against Defendants in their official capacities, were also dismissed with prejudice. ECF No. 52. Plaintiff s claims against FCP were dismissed and Plaintiff was granted thirty days to file a Second Amended Complaint to correct deficiencies identified as to his institutional liability claim against Fayette County in accordance with Monell v. New York City Dept, of Soc. Servs., 436 U.S. 658, 691 (1978). ECF No. 52. The deadline to file a Second Amended Complaint was extended by Order dated October 20, 2021, based on Plaintiffs change of address and apparent release from state custody. ECF No. 57. To date, Plaintiff has not filed a Second Amended Complaint; thus, Plaintiff s Amended Complaint is the operative complaint. ECF No. 20.
On January 6, 2022, Plaintiff appeared at the telephonic initial case management conference and the parties' obligations for discovery were reviewed. ECF No. 64. The Court issued a case management order, setting forth discovery deadlines and scheduling a post-discovery status conference for June 7, 2022. ECF No. 65.
On April 20, 2022, Defendants filed a Motion to Have Deemed Admitted Defendants' Requests for Admission and Dismiss the Suit due to Plaintiffs ongoing failure to respond to discovery as required by Federal Rule of Civil Procedure. ECF No. 67. Defendants assert that the requested discovery is directly relevant to Plaintiffs failure to exhaust available administrative remedies as required under the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e et. seq. ECF No. 68. The Court issued an Order directing Plaintiff to file a response to Defendants' Motion on or before May 6, 2022. ECF No. 69. After Plaintiff failed to respond, this Court issued an Order to Show Cause requiring Plaintiff to show cause as to why this case should not be dismissed for Plaintiffs failure to comply with the Court's Order. ECF No. 70.
On June 7,2022, Plaintiff failed to appear to the scheduled telephonic post-discovery status conference. ECF No. 72. The Court issued a second Order to Show Cause directing Plaintiff to show cause as to why this case should not be dismissed for Plaintiff s failure to comply with the Court's Orders at ECF Nos. 69-71. ECF No. 73. Plaintiffs response was due no later than June 22, 2022. Id. The Order was mailed to him at his address of record and has not been returned as undeliverable. As of this date, Plaintiff has not responded to the Order to Show Cause, nor has he given any indication of his intention to proceed with this litigation.
B. DISCUSSION
The United States Court of Appeals for the Third Circuit has identified a six-factor balancing test to guide a court in determining whether a case should be dismissed for failure to prosecute. Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: (1) the extent to 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 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. All of the Poulis factors do not need to be satisfied in order to dismiss a complaint. See C.T. Bedwell & Sons, Inc, v. Inf 1 Fid. Ins, Co., 843 F.2d 683,696 (3d Cir. 1988). Instead, the court must “properly consider and balance” each of the six factors based on the record. See Hildebrand v. Allegheny Cnty., 923 F.3d 128,132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868). There is no “magic formula” or “mechanical calculation” to determine whether a case should be dismissed for failure to prosecute. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). The decision must be made in the context of the district court's extended contact with the litigant. See C.T. Bedwell, 843 F.2d at 696.
The first Poulis factor requires the Court to consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 873 (3d Cir. 1994) (“[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.”). Here, Plaintiff is solely responsible for his lack of communication with the Court because he is proceeding pro se. See, e.g., Colon v. Kames, No. 11-1704, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012). As such, Plaintiff is personally responsible for his failure to comply with this Court's Orders at ECF Nos. 69-71 and 73. This factor weighs heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[,] the excessive and possibly irremediable burdens or costs imposed on the opposing party,” Adams, 29 F.3d at 874, and “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). At this stage in the litigation, Plaintiffs failure to respond to pending discovery requests, Defendants' pending Motion to Have Deemed Admitted Defendants' Requests for Admissions and Dismiss Suit, and his failure to appear for the PostDiscovery Status Conference clearly “frustrates and delays resolution of this action.” See Mack v. United States, No. 3:17-CV-1982,2019 WL 1302626, at *1 (M.D. Pa. Mar. 21,2019) (“[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case.”). Accordingly, this factor weighs heavily in favor of dismissal.
The third Poulis factor also weighs in favor of dismissal in this case, as it assesses the litigant's history of dilatory conduct. Plaintiff has failed to respond to pending discovery and a related motion regarding his failure to respond, and has ignored this Court's Orders at ECF Nos. 69-71 and 73. Plaintiff has not provided any excuse for these delays. This conduct is sufficient to establish Plaintiffs history of dilatoriness. See Poulis, 747 F.2d at 868.
The fourth Poulis factor considers whether the dilatory party's conduct was willful, defined as that which “involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. In this case, Plaintiffs conduct in failing to respond to discovery and Court orders demonstrates a willful disregard for the procedural rules. Plaintiffs lack of communication and action signify his decision to forego litigation of this matter. Thus, Poulis factor four weighs in favor of dismissal.
The fifth Poulis factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. It is well-established that monetary sanctions are ineffective where the Plaintiff is indigent. See, e.g., Brennan v, Clouse, No. 11-0146, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) (“Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.”) (citing Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002)). Moreover, alternative sanctions are unlikely to be effective against a party who fails to follow Court orders, such as Plaintiff. See e.g.. Mack v. United States, No. 3:17-CV-1982, 2019 WL 1302626, at *2 (M.D. Pa. Mar. 21,2019) (noting that the court was “incapable of imposing a lesser sanction” on a plaintiff who refused to participate in his own lawsuit). As such, this factor weighs in favor of dismissal.
Finally, the sixth Poulis factor considers the potential merit of Plaintiff s claims. A claim is deemed meritorious “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense.” Poulis, 747 F.2d at 870. In the present case, Plaintiffs Amended Complaint asserts an institutional liability claim regarding allegations of sexual assault and failed medical and mental health care treatment. In response, Defendants contend that Plaintiff has failed to exhaust available administrative remedies and, . therefore, his claims are barred by the Prison Litigation Reform Act. ECF No. 58. Considering the absence of a record to weigh Plaintiffs allegations and the defenses asserted in response, this factor is neutral in that it weighs neither against nor in favor of dismissal. Nevertheless, “[n]ot all of these [Poulis] factors need to be met for a district court to find dismissal is warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
After carefully weighing the Poulis factors, this Court concludes the majority of factors support dismissal. Despite ample time and opportunity, Plaintiff has failed to respond to multiple Court Orders, thus showing his lost interest in pursuing the present case. Consequently, this Court recommends that Plaintiffs case be dismissed.
C. CONCLUSION
For the foregoing reasons, it is respectfully recommended that this case be dismissed with prejudice due to Plaintiffs failure to prosecute.
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.