Opinion
CIVIL NO: 1:16-CV-02064
02-14-2019
JOHN D. LARSON, Plaintiff v. SUPERINTENDENT GARMAN, et al., Defendants
(Judge Jones) () REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff John D. Larson, a former state prisoner proceeding pro se, claims that the defendants were deliberately indifferent to his serious medical condition—a hernia. The defendants filed two separate motions for summary judgment. Despite being ordered to do so, Larson has not responded to those motions. In fact, it appears that Larson has abandoned this action. Accordingly, after analyzing the applicable factors, we conclude that the case should be dismissed based on Larson's failure to prosecute this action. In the alternative, we recommend that the motions for summary judgment filed by the defendants be granted.
II. Background and Procedural History.
Larson began this action in the Court of Common Pleas of Centre County, Pennsylvania. In October 2016, one of the defendants removed the case to this Court. On January 13, 2017, Larson filed an amended complaint naming three defendants from the State Correctional Institution at Rockview: (1) Superintendent Garman; (2) Medical Supervisor Williams; and (3) Physician's Assistant Ficks. The amended complaint also named several John Does. Larson claims that the defendants violated the Eighth Amendment by being deliberately indifferent to his serious medical need and by intentionally inflicting pain and emotional distress on him. He sought declaratory relief as well as compensatory and punitive damages.
Defendant Ficks filed a motion to dismiss the amended complaint arguing for dismissal because, among other reasons, Larson failed to exhaust available administrative remedies. Concluding that it was clear from the face of the amended complaint that Larson failed to exhaust available administrative remedies, we recommended that the Court grant Ficks's motion to dismiss, and we recommended that the Court dismiss the claims against Ficks as well as the other defendants. Finding that the issue of exhaustion and the application of exceptions to exhaustion are more appropriately determined after discovery, Judge Jones rejected that recommendation, denied Ficks's motion to dismiss, and remanded the case to the undersigned for further proceedings.
In the meantime, in July of 2017, Larson informed the Court that he had been paroled, and he provided an updated address. See docs. 27 & 28. In August of 2017, Defendant Ficks filed an answer to the amended complaint. We later denied Larson's motion for the appointment of counsel. In October of 2017, Larson again updated the Court with his new address. See doc. 40.
In the meantime, after defendants Garman and Williams were served with the amended complaint, they moved to dismiss the amended complaint. We recommended that the Court grant in part and deny in part that motion to dismiss. We also recommended that the Court dismiss the John Doe defendants. Accepting that recommendation, Judge Jones dismissed the John Doe defendants as well as Larson's claim for declaratory relief and his official-capacity claims against defendants Garman and Williams. Judge Jones remanded the case to the undersigned for further pretrial management. Defendants Garman and Williams then filed an answer to the amended complaint. We set case management deadlines, and the parties had the opportunity to conduct discovery.
On August 9, 2018, defendants Garman and Williams filed a motion for summary judgment, a brief in support of that motion, a statement of material facts, and supporting documents. We ordered Larson to file, on or before August 30, 2018, a brief in opposition to that motion for summary judgment, a response to the defendants' statement of material facts, and any transcripts, affidavits, or other relevant document in accordance with Local Rules 7.6 and 56.1.
On November 15, 2018, defendant Ficks filed a motion for summary judgment, a brief in support of that motion, a statement of material facts, and supporting documents. We ordered Larson to file, on or before December 10, 2018, a brief in opposition to that motion for summary judgment, a response to the defendant's statement of material facts, and any transcripts, affidavits, or other relevant document in accordance with Local Rules 7.6 and 56.1.
Larson failed to file a brief or other documents in opposition to either of the pending motions for summary judgment. And the order that was sent to Larson directing him to file a brief in opposition to Ficks's motion for summary judgment was returned as undeliverable.
By an Order dated January 28, 2019, we noted that generally, a dispositive motion may not be granted merely because it is unopposed, but when a plaintiff fails to prosecute an action or fails to comply with a court order, the Court may dismiss the action pursuant to Fed.R.Civ.P. 41(b). Here, Larson has failed to file briefs in opposition to the defendants' motions for summary judgment as ordered by the Court, and he has failed to keep the Court informed of his current address as required by Local Rule 83.18. In the Order of January 28, 2019, we stated that it appeared that Larson has abandoned this lawsuit. And we ordered Larson to show cause, on or before February 8, 2019, why this action should not be dismissed pursuant to Fed.R.Civ.P. 41(b) in that he has failed to prosecute this action. We warned him that if he failed to show cause, we may recommend that the case be dismissed.
Larson has not responded to the order to show cause. And he still has not responded to the pending motions for summary judgment motion in any manner. Nor has he requested an extension of time to do so. In fact, Larson has not filed anything in this action since January of 2018. We conclude that he has abandoned this action, and after considering the relevant factors, we recommend that the case be dismissed. In the alternative, we recommend that the motions for summary judgment be granted on the merits.
III. Discussion.
A. Under the Rules of this Court, Larson Should Be Deemed Not to Oppose the Motions for Summary Judgment.
At the outset, under the Local Rules of this court, Larson should be deemed not to oppose the motions for summary judgment since he has failed to timely oppose those motions.
Local Rule 7.6 imposes an affirmative duty on a litigant to respond to motions and provides that "[a]ny party who fails to comply with this rule shall be deemed not to oppose such motion." At the time that he filed his complaint, Larson received a copy of the Court's Standing Practice Order, which set forth his obligations with respect to responding to a summary judgment motion. Doc. 3 at 3-4.
In this case, Larson has not complied with Local Rule 7.6 or this Court's order to respond to the motions for summary judgment. Nor has he shown cause, after being ordered to do so, why this case should not be dismissed. These procedural defaults compel us to consider:
[A] basic truth: we must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion. . . ."Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D.Pa. 2010) (quoting McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)). With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, "would actually violate the dual mandate which guides this court and motivates our system of justice: 'that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion.'" Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
Such basic principles of fairness apply here. In this case, Larson failed to comply with Local Rule 7.6 and he failed to file a brief in opposition to the pending motions for summary judgment. Nevertheless, Larson'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 Third Circuit reversed a district court's dismissal based on the pro se plaintiff's failure to file a brief in accordance with a local rule of court. The Third Circuit 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. It noted that dismissal was not to be ruled out if the party was represented by an attorney and in fact did not oppose the motion. Id. It also noted: "Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked. Thus, our holding is not broad." Id. at 30.
Although this caveat from the Stackhouse case might suggest that we could grant the pending motions for summary judgment based on Larson's failure to file a brief in opposition after being ordered to do so by the Court, the Third Circuit has 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." Hernandez v. Palakovich, 293 F.App'x 890, 895 (3d Cir. 2008). Rather, the Third Circuit has held 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 F.App'x 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 the Shuey's claim, and it was error to dismiss without first considering the Poulis factors."). Thus, we turn to a consideration of the Poulis factors.
B. Consideration of the Poulis Factors Warrants Dismissal of this Case or in the Alternative, the Defendants' Motions for Summary Judgment Should Be Granted.
If the plaintiff fails to prosecute a case or to comply with court rules or court orders, pursuant to Fed.R.Civ.P. 41(b), the Court may dismiss the action. Even though dismissal is an available sanction, it is a drastic sanction that "should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff." Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). But that discretion, while broad, is governed by the following factors, commonly referred to as Poulis factors, which the Court must balance in deciding whether to dismiss a case:
(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.Poulis, 747 F.2d at 868. No single factor is dispositive, Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008), and each factor need not be satisfied for the court to dismiss an action, Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). In this case, an assessment of the Poulis factors weighs heavily in favor of dismissing this action.
The first Poulis factor is 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, Larson is proceeding pro se, and so he is responsible for his failure to file a brief in opposition to the pending motions for summary judgment, as required by the Local Rule and as ordered by the Court. In sum, Larson is responsible for his failure to comply with the court rules and court orders, and he is also responsible for his failure to litigate this case.
The second Poulis factor is prejudice to the adversary. Examples of prejudice are "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party." Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. Ware, 322 F.3d at 222. "[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, Larson's failure to litigate this case and comply with court rules and court 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.
The third Poulis factor is a history of dilatoriness. While "conduct that occurs one or two times is insufficient to demonstrate a 'history of dilatoriness,'" Briscoe, 538 F.3d at 261, "[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders." Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). A "party's problematic acts must be evaluated in light of [his] behavior over the life of the case." Id. at 875. In this case, Larson has a history of dilatoriness. He failed to file a brief in opposition to the pending motions for summary judgment. Moreover, he failed to do so even though the Court ordered him to do so. He also failed to keep the Court informed of his address as one of the orders sent to him from the court was returned as undeliverable. Further, he failed to respond to the order to show cause why this case should not be dismissed. Defendants Ficks also states that Larson failed to respond to her discovery requests. See doc. 57 at 6.
The fourth Poulis factor is whether the conduct was willful or in bad faith. "Willfulness involves intentional or self-serving behavior." Adams, 29 F.3d at 875. Here, Larson was ordered to file a brief in opposition to the motions for summary judgment, but he did not do so. Nor has he communicated with the Court in any manner for over a year. Larson's silence and failure to litigate this action lead to an inference that he has willfully abandoned this case.
The fifth Poulis factor is the effectiveness of alternate sanctions. Dismissal is a sanction of last resort, and it is incumbent upon a court to explore the effectiveness of lesser sanctions before ordering dismissal. Poulis, 747 F.2d at 868. Larson is proceeding pro se, and there is no evidence to support a reasonable inference that he 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. Moreover, Larson's failure to prosecute this action even in the face of an order to show cause leads to an inference that further orders to him would not be effective. In this case, no sanction short of dismissal would be effective.
The sixth Poulis factor is the meritoriousness of the claim. 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. Since the amended complaint survived in part the motions to dismiss, we cannot say that Larson's claims do not have legal merit. But in our view, consideration of this factor cannot save Larson's case, since Larson is now wholly noncompliant with his obligations as a litigant.
Moreover, given that Larson has failed to respond to the statements of material facts submitted by the defendants in support of their pending motions for summary judgment, the facts set forth by the defendants are deemed admitted for purposes of the pending motions for summary judgment. And those facts show that the defendants are entitled to judgment as a matter of law. More specifically, those facts show that Larson failed to exhaust available administrative remedies and that the defendants were not deliberately indifferent to Larson's serious medical needs. Thus, the motions for summary judgment should be granted.
In sum, the Poulis factors weigh heavily in favor of dismissal. Larson has abandoned this case. Thus, we will recommend that the Court dismiss the case. In the alternative, given that Larson has not disputed any of the facts set forth by the defendants and based on the undisputed facts the defendants are entitled to judgment as a matter of law, we recommend that the Court grant the pending motions for summary judgment.
IV. Recommendations.
Accordingly, for the foregoing reasons, it is recommended that the Court dismiss this action in accordance with Fed.R.Civ.P. 41(b) or, in the alternative, grant the defendants' motions (docs. 50 & 55) for summary judgment.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive
further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 14th day of February, 2019.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge