Opinion
1:20-CV-00328-SPB
06-08-2022
VICTOR K. LEMMONS, JR., Plaintiff v. JANE DOE, UNITED STATES MARSHAL SERVICE; JOHN DOE, UNITED STATES MARSHAL SERVICE; JANE DOE, LIASON OF MEDICAL SERVICES; AND JOHN DOE, LIASON OF MEDICAL SERVICES, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that this matter be dismissed based on any one or more of three alternative grounds: (1) Plaintiffs failure to prosecute the action, (2) Plaintiffs failure to serve the Defendants as required by Federal Rule of Civil Procedure 4(m), and (3) the legal insufficiency of Plaintiffs claims pursuant to 28 U.S.C. § 1915(e)(2).
II. Report
A. Background
Plaintiff Victor K. Lemmons, Jr. (Lemmons) filed his initial complaint in this action on November 18, 2020. See ECF No. 1. A month later, Lemmons filed a motion for leave to proceed in forma pauperis, which the Court granted on April 26, 2021. His complaint was docketed the same day and named “Jane Doe, United States Marshal Service, John Doe, United States Marshal Service, Jane Doe, Liaison of Medical Services, and John Doe, Liaison of Medical Services, ” as defendants. The address given for these defendants was 17 South Park Row, Erie, Pennsylvania, which is the mailing address for the United States Courthouse. See ECF No. 16. Lemmons filed an amended complaint on June 1, 2021. ECF No. 23. That pleading named the same John and Jane Doe defendants as the original complaint. Id. Lemmons provided the same courthouse address for these defendants. Id. The Court ordered the United States Marshal Service to mail a copy of the amended complaint, summons, and order to the defendants, as listed by Lemmons. ECF No. 25. On August 20, 2021, that summons was returned to the Court as unexecuted. ECF No. 28.
On January 27, 2022, this Court ordered Lemmons to show cause why the claims against the John Doe and Jane Doe defendants should not be dismissed for a failure to serve those defendants within ninety-days after the filing of the amended complaint. See ECF No. 32. As an alternative to dismissal, the Court gave Lemmons leave to file a second amended complaint identifying the John Doe and Jane Doe defendants with sufficient specificity to allow service of process. Id. That order was mailed to Lemmons at his then-current address of record and was not returned to the Court as undeliverable. As of today's date, Lemmons has not responded to the Court's how cause order or filed a second amended complaint.
B. Standard of Decision
Federal Rule of Civil Procedure 41(b) states, in relevant part, that “if the plaintiff fails to prosecute ... a defendant may move to dismiss the action.” Fed. R. Civ. P. 41(b). A district court may also dismiss a case pursuant that Rule for a plaintiff s failure to comply with an order of court. Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). “Under our jurisprudence, the sanction of dismissal is reserved for those cases where the plaintiff has caused delay or engaged in contumacious conduct. Even then, it is also necessary for the district court to consider whether the ends of justice would be better served by a lesser sanction.” Id.
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Court of Appeals for the Third Circuit set out six factors to be weighed when considering whether dismissal of a case as a sanction for failure to obey pre-trial orders and participate in discovery was 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 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). There is no “magic formula” for balancing the Poulis factors and not all of the six factors need to be satisfied in order to warrant dismissal. See Karpiel v. Ogg, Cordes, Murphy & Ignelzi, L.L.P., 405 Fed.Appx. 592, 595 (3d Cir. 2010) (citing Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) and Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003)).
C. Discussion: Dismissal for failure to prosecute.
Because five of the six Poulis factors weigh heavily in favor of dismissal, the Court should dismiss this matter, albeit without prejudice. Consideration of the factors listed above is as follows.
1. The extent of the party's personal responsibility.
Lemmons is representing himself in this matter. Therefore, he is the party responsible for failing to respond to the Court's show cause order, despite being directed to do so. See, e.g., Williams-Bearden v. Clouser, 2021 WL 4743705, *2 (M.D. Pa. Oct. 12, 2021). There is no indication that he failed to receive the Court's order. Thus, Lemmons alone bears full responsibility for any failure in the prosecution of his claims. See, e.g., Briscoe v. Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008) (a pro se plaintiff is personally responsible for the progress of his case and compliance with a court's orders); Ferguson v. Klock, 2021 WL 1293431, at *2 (E.D. Pa. Apr. 7, 2021).
2. Prejudice to the adversary.
The second Poulis factor, the prejudice to Defendants caused by Lemmons' failure to respond to the Court's show cause order is neutral here. “Examples of prejudice include ‘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.'” Adams v. Trustees of New Jersey Brewery Employees' Pension Tr. Fund, 29 F.3d 863, 874 (3d Cir. 1994). Because the defendants have not yet been served, they have not been prejudiced by Lemmons' failure to prosecute his case. See, e.g., Pedro v. United States Equal Employment Opportunity Commission, 2021 WL 2903091, at *3 (E.D. Pa. July 8, 2021).
3. A history of dilatoriness.
The level of inattention Lemmons has displayed toward this litigation is sufficient evidence, in the Court's view, to indicate that he does not intend to proceed with this case in a timely fashion. He has missed several court-mandated deadlines and violated the Court's show cause order. This weights in favor of dismissal.
4. Whether the party's conduct was willful or in bad faith.
There is no indication on this record that Lemmons' failures were the result of any “excusable neglect, ” Poulis, supra., and it appears that his failure to comply with the show cause order is willful. Moreover, his failure to respond to the Court's show cause order is viewed as purposeful. Thus, the Court should conclude that his actions were an intentional disregard of his own case and our orders. This factor also weighs in favor of dismissal.
5. Alternative sanctions.
Imposition of costs or fees upon Lemmons would likely be ineffective as a sanction since he is representing himself and thus has no attorney upon whom the Court could impose sanctions or expenses for failing to comply with the Court's prior orders. See Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002). Lemmons' utter lack of participation in this litigation has potentially resulted in lost witness memories or other relevant information since the filing of his Complaint. Dismissal is the most effective sanction under the particular facts and circumstances of this case.
6. Meritoriousness of Lemmon's case.
Lemmons alleges in conclusory fashion that the unnamed defendants did not respond properly to certain gastrointestinal conditions and ailments he had while he was incarcerated. As relief, he seeks referral to a “GI doctor” and punitive damages. See ECF No. 23, p. 4. As reflected by Lemmons' current address of record, he is no longer incarcerated. See ECF No. 31. Given this, the Court has no basis to infer that any of the defendants can provide the prospective equitable relief he requests. Thus, his claim for equitable relief appears to be moot. To support a claim for punitive damages, the defendant's conduct must have been intentional, malicious, wanton, reckless, willful or oppressive. See e.g, Walker v. May Dep't Stores Co., 83 F.Supp.2d 525, 529 (E.D. Pa. 2000). The facts alleged in Lemmons' amended complaint appear to fall short of the type of outrageous conduct that would support a claim for punitive damages. Thus, based on the allegations of his amended complaint, Lemmons' claims lack merit and this factor also favors dismissal.
D. Discussion: Federal Rule of Civil Procedure 4(m)
As an alternative, this case is subject to dismissal, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Rule 4(m) requires a plaintiff to serve a defendant within 90 days after the complaint is filed, “[b]ut 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). See also McCall v. Thazhathel, 2022 WL 1136726, at *5 (E.D. Pa. Apr. 18, 2022). It is clear from the face of the docket that Lemmons has not complied with Rule 4(m). His amended complaint was filed on June 1, 2021, giving Lemmons until August 30, 2021, to effectuate service. ECF No. 23. The Court attempted service based on the limited information Lemmons provided. See \ ECF No. 25. A copy of the complaint, summons, and service order were mailed to the United States Marshals Service, the Office of the United States Attorney General, the office of the United States Attorney for the Western District of Pennsylvania. See ECF Nos.. 25, 29. Service was returned unexecuted from the Marshals Service on August 20, 2021. ECF No. 28. No response was received from the Attorney General or the United States Attorney. More than ninety days have now passed from the date Lemmons filed his amended complaint with no service on the defendants having been made. Thus, Lemmons is well beyond Rule 4(m)'s ninety-day service requirement and this matter is subject to dismissal on that basis.
Moreover, Lemmons has received the requisite notice of such a dismissal. See Wallace v. Fed. Emples. of United States Dist. Court, 325 Fed.Appx. 96, 1010 n.6 (3d Cir. 2009) (holding that a district court must provide plaintiff with notice and an opportunity to respond before dismissing their claims without prejudice); Major v. Halligan, 2021 WL 6283944, at *6 (W.D. Pa. Nov. 17, 2021). Lemmons was notified through the Court's show cause order of January 27, 2022, that “attempts to complete service of the Amended Complaint on the John Doe and Jane Doe defendants have been returned to the Court unexecuted based on the information” Lemmons provided. ECF No. 32. He was given until February 17, 2022, to either provide additional information to effectuate service or file a second amended complaint. Id. He did neither. Thus, as an alternative, Lemmons' claims may be dismissed, without prejudice under Rule 4(m).
E. Discussion: Dismissal under 28 U.S.C. § 1915(e)(2)
28 U.S.C. § 1915(e)(2) gives the Court the authority to screen and dismiss a complaint if it is frivolous, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See Phillips v. City of Pittsburgh, 2022 WL 704933, at *1 (W.D. Pa. Mar. 9, 2022) (citing 28 U.S.C. § 1915(e)(2)(B)(i)-(iii)). Here, Lemmons alleges in conclusory fashion that the unnamed defendants did not respond properly to certain gastrointestinal conditions and ailments he had while he was incarcerated. As relief, he seeks referral to a “GI doctor” and punitive damages. See ECF No. 23, p. 4. As noted, Lemmons is no longer incarcerated. See ECF No. 31. Because the Court has no basis to infer that any of the defendants can provide the prospective equitable relief he requests, his claim for equitable relief appears to be moot. And, as previously discussed, the facts alleged in the amended complaint appear to fall short of the type of willful or malicious conduct that would support a claim for punitive damages. Accordingly, the claims asserted by Lemmons in his amended complaint appear to be facially deficient and, therefore, subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2).
F. Conclusion
This action should be dismissed for any and/or all of the reasons stated above.
III. Notice Regarding Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).