Opinion
Civil Action 2:20-cv-00722-SPB-LPL
07-06-2023
WESLEY A. MASSEY Plaintiff, v. JOHN WETZEL, LEE ESTOCK, RODNEY CHISM, BILLIE HEIDE, & SUSAN BERGEY Defendants.
District Judge Baxter
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. PROCEDURAL HISTORY
Plaintiff, Wesley A. Massey, (hereinafter “Plaintiff”) filed a Motion for Leave to Proceed in Forma Pauperis on May 19, 2020. ECF No. 1. The motion was granted on September 15, 2020, and his Complaint was docketed that same day. ECF Nos. 16 & 18. Plaintiff alleges that he has type-2 diabetes, hypertension, and heart disease. SCI Pine Grove quarantined Plaintiff and other high-risk individuals on March 18, 2020 in order to prevent the transmission of Covid-19. The correctional institution as a whole was quarantined on March 30, 2020. In spite of these precautions, SCI Pine Grove decided to accept a transfer of inmates from another facility on March 31, 2020. The transfer facility had 22 confirmed cases of Covid-19 at the time. Plaintiff alleges Defendants refused to take the necessary steps to make sure he was not exposed to Covid-19. He was kept in a cell with other inmates who were clearly sick, and antibacterial soap was not provided to Plaintiff. ECF No. 18.
Plaintiff filed a Motion for a Preliminary Injunction for release on May 19, 2020. ECF No. 2. On June 3, 2020, the motion for an injunction was denied as to release and deferred in part to determine if alternative injunctive relief was warranted. ECF No. 6. The Court subsequently denied the motion in its entirety after an evidentiary hearing established that Plaintiff could not show either irreparable harm or a likelihood of success on the merits regarding his claim of deliberate indifference, owing in part to the fact that none of the staff or inmates at SCI Pine Grove had tested positive for Covid-19. ECF No. 16. Plaintiff then filed two motions for reconsideration of the order denying injunctive relief. ECF Nos. 22 & 29. The motions for reconsideration were denied. ECF No. 36.
Plaintiff filed a Notice of Appeal for the denial of his Motion for Reconsideration on February 5, 2021. ECF No. 49. This civil action was stayed on April 22, 2021, pending the outcome of Plaintiff's appeal. ECF No. 51. On March 23, 2023, the Court of Appeals for the Third Circuit dismissed Plaintiff's appeal for failure to prosecute because he failed to pay the requisite fees. ECF No. 53. This action was reopened on May 2, 2023 after Plaintiff's appeal was dismissed. ECF No. 54. The order reopening the action was mailed to Plaintiff at both his address of record and to an address that Plaintiff had identified in another matter before the court. ECF No. 55. Plaintiff was reminded that he has a continuing obligation to notify the Clerk of Court of any address change at each case number before the Court. Id.
Defendants filed a Motion to Dismiss on December 15, 2020. ECF No. 32. Plaintiff requested an extension of time to file a response to the Motion to Dismiss. ECF No. 44. Plaintiff's request was granted on January 14, 2021. ECF No. 47. Plaintiff's deadline to respond to the motion was postponed due to the stay of the case from April 22, 2021 to May 2, 2023. Plaintiff's deadline to respond to the Motion to Dismiss was subsequently extended until June 2, 2023 after his appeal was denied and this action was reopened. ECF No. 56. Plaintiff was warned that failure to file a response in opposition may result in dismissal of this action for failure to prosecute. Id. Plaintiff has not responded to the Motion to Dismiss as of the date of this Report and Recommendation, approximately one month after the deadline.
The Court has mailed copies of each order issued in this case to Plaintiff's address of record. Beginning on May 2, 2023, the Court additionally mailed each order to the address of record in another civil action which Plaintiff filed after this action. On May 17, 2023, the Court's mailed copies of ECF Nos. 54 & 55 were returned from Plaintiff's most recent address as undeliverable. On May 31, 2023, the Court's mailed copy of ECF No. 56 was returned from Plaintiff's most recent address as undeliverable. On June 5, 2023, the Court's mailed copy of ECF No. 56 was returned from Plaintiff's address of record in this action as undeliverable. The Court has not received any notice or request from Plaintiff to update his address of record.
III. 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.
A. 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