Opinion
C. A. 20-722 Pittsburgh
07-31-2023
WESLEY A. MASSEY, Plaintiff, v. JOHN WETZEL, et al., Defendants.
Lisa Pupo Lenihan Magistrate Judge
MEMORANDUM ORDER
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
Plaintiff Wesley A. Massey, an inmate formerly incarcerated at the State Correctional Institution at Pine Grove in Indiana, Pennsylvania (“SCI-Pine Grove”), initiated this pro se civil rights action on May 19, 2020, by filing a motion to proceed in forma pauperis [ECF No. 1], along with a motion for preliminary injunction and supporting brief seeking temporary release from incarceration [ECF Nos. 2, 3]. The matter was assigned to the undersigned, as presiding judge, and referred to United States Magistrate Judge Lisa Pupo Lenihan for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.
A telephonic hearing on Plaintiffs injunction motion was held before the undersigned on June 30, 2020, and the motion was ultimately denied by this Court's Memorandum Order, dated September 15, 2020. [ECF No. 16]. In the same Order, this Court granted Plaintiffs motion to proceed in forma pauperis and directed the Clerk to file Plaintiff s pro se complaint on the same date. Plaintiff subsequently filed two motions for reconsideration of this Court's Order denying his motion for preliminary injunction [ECF Nos. 22, 29]. Both of these motions were ultimately denied by this Court's Memorandum Order dated December 28, 2020 [ECF No. 36].
In the meantime, on December 15, 2020, Defendants filed a motion to dismiss Plaintiff s complaint for failure to state a claim [ECF No. 32]. After being granted an extension of time to file a response to Defendants' motion to dismiss, Plaintiff filed a notice of appeal with the Third Circuit Court of Appeals as to this Court's Order denying his preliminary injunction motion [ECF No. 49]. As a result, this case was stayed and administratively closed pending the outcome of the appeal [ECF No. 51].
After the Third Circuit Court dismissed Plaintiff s appeal, this case was reopened on May 2, 2023 [ECF No. 54], and Judge Lenihan issued an Order requiring Plaintiff to file a response to Defendants' motion to dismiss by June 2, 2023, or suffer the possibility of having this case dismissed for failure to prosecute. [ECF No. 56]. Both the Order reopening the case and the response Order were mailed to Plaintiffs last known addresses, but were returned undeliverable. Moreover, the envelope returned from SCI-Pine Grove contained a notation indicating that Plaintiff was paroled, with no forwarding address.
The Orders were mailed to Plaintiffs address of record in this case, at SCI-Pine Grove, and also to the mailing address indicated on the docket of Plaintiff s last filed case at Civil Action No. 22-270 Erie, which was a street address in Erie, Pennsylvania.
Because Plaintiff failed to notify the Court of a change of address and never filed a response to Defendants' motion to dismiss, Judge Lenihan issued a Report and Recommendation (“R&R”) on July 6, 2023, recommending dismissal of this case for Plaintiffs failure to prosecute [ECF No. 58]. The R&R was mailed to Plaintiffs last known address of record at SCI-Pine Grove and was, again, returned as undeliverable with a handwritten notation confirming the Plaintiff was paroled on July 22, 2023. No change of address has since been filed by Plaintiff and no objections to the R&R have been received.
Thus, after de novo review of the complaint and documents in this case, together with the report and recommendation, the following order is entered:
AND NOW, this 31st day of July, 2023;
IT IS HEREBY ORDERED that this case is DISMISSED for Plaintiffs failure to prosecute, and Defendants' motion to dismiss [ECF No. 32] is DISMISSED as moot. The report and recommendation of Magistrate Judge Lenihan, issued July 6, 2023 [ECF No. 58], is adopted as the opinion of the court.
The Clerk is directed to mark this case CLOSED.