Opinion
Civil Action 2:22-cv-556
04-19-2024
KHALIL NEWMAN Plaintiff, v. CHRISTINE RAUCH, LPN and PRIME CARE, INC. Defendants.
ECF Nos. 12, 21, and 62
Marilyn J. Horan, District Judge.
REPORT AND RECOMMENDATION
KEZIA O. L. TAYLOR, United States Magistrate Judge
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that this case be dismissed for failure to prosecute and for failure to comply with court orders pursuant to Federal Rule of Civil Procedure 41(b).
II. PROCEDURAL HISTORY
On April 14, 2022, Plaintiff Khalil Newman (“Plaintiff” or “Newman”) filed a Motion to Proceed in forma pauperis with a copy of the Complaint attached. ECF No. 1. On April 25, 2022, the motion was denied for failure to attach a certified copy of the inmate account statement for the six months preceding the filing of the complaint. ECF No. 4. On May 1, 2022, Plaintiff filed a second Motion to Proceed in Forma Pauperis. ECF No. 5. The Motion was granted on May 12, 2022, and the Complaint was docketed that same day. ECF Nos. 7 and 8, respectively.
After Motions to Dismiss were ruled upon, the only remaining claims are against: (1) Defendant Christine Rauch, LPN (“Defendant Rauch”) for Fourteenth Amendment Deliberate Indifference to Serious Medical Needs pursuant to 42 U.S.C. § 1983, (ECF Nos. 55 and 59); and (2) liberally construing the operative Complaint, a state negligence claim remains against Defendant Rauch and Prime Care, Inc. (“Defendant Prime Care”) (collectively “Prime Care Defendants”). See ECF Nos. 21, 50, and 55.
On December 12, 2023, the Prime Care Defendants filed a Motion for Summary Judgement, Brief in Support, and Concise Statement of Material Facts. ECF Nos. 62, 63 and 64, respectively. Plaintiff Newman was ordered to respond to the motion by January 16, 2024. ECF No. 65. That Order was accompanied by a complete set of directions for filing the response. Id. Plaintiff failed to file a response by the deadline. On January 25, 2024, the Court entered an Order to show cause why the case should not be dismissed for failure to prosecute insofar as Plaintiff failed to file a response to the Motion for Summary Judgment by the deadline set by the Court. ECF No. 67. The Court further noted that Plaintiff Newman did not request an extension of time in which to respond. Id. The Court extended Plaintiff Newman's response deadline until February 9, 2024 and warned that this civil action may be dismissed without further notice if Plaintiff fails to file his response by the new deadline. Id. As of the date of this Report and Recommendation, Plaintiff Newman has failed to file his response to the Motion for Summary Judgment filed by the Prime Care Defendants. Moreover, he has requested no extensions of time in which to file his response. Importantly, an Order of Court sent by regular mail to Plaintiff Newman on January 10, 2024, was returned to the Court with a handwritten note on the envelope: “RELEASED RETURN TO SENDER.” ECF No. 66.
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, 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 make an informed decision.'” Qadr, 642 Fed.Appx. at 103 (quoting Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008)). Before engaging in a sua sponte dismissal, “the district court ‘should provide the plaintiff with an opportunity to explain his reasons for failing to prosecute the case or comply with its orders.'” Id. (quoting Briscoe, 538 F.3d at 258).
Here, Plaintiff has been advised that absent affirmative indication of his desire to proceed with the litigation, the Court would consider dismissal of the case. ECF No. 67. The Court issued an Order to Show Cause on January 25, 2024. Id. Having been given ample opportunity, Plaintiff has failed to provide any information as to his current address, or information that would account for his failure to move this litigation forward.
B. The Poulis Factors
In Poulis v. States Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper under Rule 41(b):
(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.Id. at 868. In balancing the Poulis factors, no single factor is dispositive, nor do all factors need to be satisfied to result in a dismissal of the complaint. Briscoe, 538 F.3d at 263. However, in determining whether a dismissal is warranted, the Court must analyze the factors in light of the “strong policy favoring decisions on the merits.” Hildebrand v. Allegheny Cnty., 923 F.3d 128, 132 (3d Cir. 2019). The Third Circuit has emphasized that “dismissals with prejudice or defaults are drastic sanctions, termed ‘extreme' by the Supreme Court,” and they “must be a sanction of last, not first, resort.” Poulis, 747 F.2d at 867-68, 869 (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)). “Cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand, 923 F.3d at 132.
C. Application of the Poulis Factors
1. The extent of the party's personal responsibility
“[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.” Adams, 29 F.3d at 873. In determining personal responsibility for the delay, the Court must distinguish “between a party's responsibility for delay and counsel's responsibility.” Hildebrand, 923 F.3d at 133 (citing Poulis, 747 F.2d at 868). A plaintiff is not conjecturally responsible for her counsel's delay. Id. Any doubt as to personal responsibility should be resolved “‘in favor of reaching a decision on the merits.'” Id. at 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Here, because Plaintiff is proceeding pro se, the responsibility of moving the case forward lies with him. In addition, it is Plaintiff's responsibility to update his address with the Court. Therefore, the first factor favors dismissal.
2. Prejudice to the adversary
Prejudice to the adversary is a substantial factor in the Poulis analysis; but like any other factor, it is not dispositive. Hildebrand, 923 F.3d at 134. “Relevant examples of prejudice include ‘the irretrievable loss of evidence[] [and] the inevitable dimming of witnesses' memories.'” Id. (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). A party is not required “to show ‘irremediable harm' for the prejudice to weigh in favor of dismissal.” Id. (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). If the opposition is unable to prepare “a full and complete trial strategy” then there is sufficient prejudice to favor dismissal. Id. (citation omitted).
Here, Defendants will be severely prejudiced if the case is permitted to linger in the absence of activity by the Plaintiff. The memory of witnesses will most surely fade with the passage of time. Importantly, Defendants cannot defend claims that are not being pursued by Plaintiff. Moreover, without his current address, the Court and the Prime Care Defendants are unable to communicate with Plaintiff Newman, thereby delaying the prosecution of this case even further. Therefore, the second factor favors dismissal.
3. A history of dilatoriness
A history of dilatoriness is generally established by repeated “delay or delinquency.” Adams, 29 F.3d at 874. While once or twice is normally insufficient, this factor weighs in favor of dismissal where the plaintiff has a history of repeated delay. Hildebrand, 923 F.3d at 135 (citation omitted). In addition to repeated acts, “extensive” delay can also create a history of dilatoriness. Adams, 29 F.3d at 874. A “failure to prosecute” does not require that plaintiff take affirmative “steps to delay the trial .... It is quite sufficient if [he/she] does nothing .... ” Id. at 875 (citation omitted).
“While extensive delay may weigh in favor of dismissal, ‘a party's problematic acts must be evaluated in light of its behavior over the life of the case.'” Hildebrand, 923 F.3d at 135 (quoting Adams, 29 F.3d at 875). Thus, where a plaintiff has not been previously delinquent the weight given even a long delay should be mitigated. Id.
Here, Plaintiff has engaged in repeated delays throughout the life of this civil action. First, an Order to Show Cause was entered by the Court on July 19, 2022, because Plaintiff failed to update his address of record. ECF No. 18. Consequently, the Court's Order of June 30, 2022, was returned to the Court. ECF Nos. 16 and 17 respectively. The Court ordered that Plaintiff update his address by August 2, 2022, or risk dismissal. ECF No. 18. Although Plaintiff failed to update his address by that date, the Court instructed the Clerk of Court to update Plaintiff's address of record. ECF No. 20.
Plaintiff Newman filed a Motion for Leave to Amend his Complaint. ECF No. 19. In granting that motion, the Court took notice of the fact that Plaintiff was then housed at Erie County Prison, rather than Mercer County Prison. ECF No. 20. The Court instructed the Clerk of Court to update Plaintiff's address of record. Id. The Court further instructed Plaintiff that it was his responsibility to keep his record address current, and to do so, he should file a Notice of Change of Address anytime his address changes. Id. He was further warned that his failure to keep his address current would result in dismissal of the civil action for failure to prosecute. Id.
Similarly, the Court entered an Order to Show Cause on February 22, 2023, as to why this case should not be dismissed for Plaintiff's failure to prosecute because Plaintiff failed to comply with the Court's order of December 1, 2022, which set a response deadline to the Motion to Dismiss filed by certain defendants. ECF No. 48. The Court noted that it had granted Plaintiff an extension of time in which to file the response, but no response was received. Id. (citing ECF Nos. 46 and 47). The Court granted Plaintiff one last extension to file his response. Id.
These defendants have been terminated as party Defendants.
Most recently, the Court entered an Order to Show Cause on January 25, 2024 as to why the case should not be dismissed for Plaintiff's failure to file his response to the pending Motion for Summary Judgment. ECF Nos. 67 and 62 respectively. The Court noted that Plaintiff did not request an extension of time in which to respond. ECF No. 67. The Court, however, granted Plaintiff an extension until February 9, 2024, to file a response. Id. As of the date of this Report and Recommendation, Plaintiff has filed no response.
Finally, Plaintiff's final piece of returned mail indicated that Plaintiff Newman was released. Yet, Plaintiff did not notify the Court of his new address although the Court instructed him to do so. See ECF Nos. 18 and 20. It appears that Plaintiff has abandoned this civil action.
Thus, the third factor also weighs in favor of dismissal.
4. Whether the party's conduct was willful or in bad faith
In determining if plaintiff's conduct constituted willful or bad faith, the “court should look for ‘the type of willful or contumacious behavior' that can be characterized as ‘flagrant bad faith,' such as [a case history of] failing to answer interrogatories for nearly a year and a half, demanding numerous extensions, ignoring admonitions by the court, and making false promises to correct delays.” Id. (citing Scarborough, 747 F.2d at 875 (citation omitted)). “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Although “[a] lengthy delay reflects ‘inexcusable negligent behavior,' id. at 876, . . . that behavior alone does not rise to the level of willfulness or bad faith.” Hildebrand, 923 F.3d at 135.
Finally, “[b]ecause the harsh sanction of dismissal should serve to deter bad faith or selfserving behavior, and because of our policy of favoring decisions on the merits, [in the absence of evidence] that the delay was not effectuated willfully or in bad faith, [this factor] should weigh against dismissal.” Id. at 136.
Here, the Court took it upon itself to update Plaintiff Newman's address because Plaintiff failed to fulfill his responsibility to do so. See ECF No. 20. Further, Plaintiff has willfully ignored Court orders because he failed to take any action despite this Court's ordering him to move the case forward. See ECF Nos. 18, 48, 65, and 67. Therefore, the fourth factor also weighs in favor of dismissal.
5. Effectiveness of sanctions other than dismissal
A district court must thoroughly consider “alternative sanctions before dismissing a case with prejudice.” Id. (citing Briscoe, 538 F.3d at 262). The court should also provide an analysis of effectiveness sufficient “to honor [the] longstanding tradition of favoring decisions on the merits.” Id. In so doing, the court should be mindful that “[a]lternatives are particularly appropriate when the plaintiff has not personally contributed to the delinquency.” Poulis, 747 F.2d at 866 (citations omitted). “[A]lternative sanctions need only be effective toward mitigating the prejudice caused by dilatory behavior or delinquency.” Hildebrand, 923 F.3d at 136. They are not required to be “completely ameliorative.” Id.
Here, in the absence of any action taken by the Plaintiff, no alternative sanctions could remedy or mitigate the prejudice caused by Plaintiff Newman's failure to take any steps to move the case forward. Accordingly, the fifth factor weighs in favor of dismissal.
6. Meritoriousness of claim or defense
The standard for determining whether a plaintiff's claims are meritorious is moderate. Adams, 29 F.3d at 876. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not a summary judgment standard, is applicable in a Poulis analysis. Id. at 869-70.
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” (Fowler [v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009)]); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18, (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition, when considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
In this case, Plaintiff cannot prevail on his claims against the Prime Care Defendants. Here, the remaining claims include a Fourteenth Amendment deliberate indifference to serious medical needs claim against Defendant Rauch, and a state law negligence claim against both Prime Care Defendants premised upon Plaintiff's allegation that another inmate threw urine on him.
Plaintiff Newman was a pretrial detainee at the time of the alleged incident and therefore, the Fourteenth Amendment, rather than the Eighth, applies to this claim. Am. Compl., ECF No. 12 at 1.
As to the medical needs claim, the record reflects that Defendant Nurse Rauch was called to the segregation unit of Mercer County Jail to assess Plaintiff's left hand after he was in a fight with another inmate. She provided ice, Motrin, and scheduled an X-ray and requested that other nurses check on Plaintiff while he remained in segregation. Plaintiff Newman was also referred to UPMC Regional Orthopedics. See ECF No. 64-1 at 2-8.
When evaluating inadequate medical care claims by pretrial detainees, courts must apply the Eighth Amendment's deliberate indifference standard as articulated by the Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976), but must view this inquiry in the context of the standard articulated in Bell v. Wolfish, which applies Fourteenth Amendment due process principles to pretrial detainees, rather than the cruel and unusual punishment standard. Langella v. Cnty. of McKean, Civ. A. No. 09-cv-311E, 2010 WL 3824222, *13 (W.D. Pa. Sept. 23, 2010) (citing Hubbard, 399 F.3d at 165-66). See also Montgomery v. Ray, 145 Fed.Appx. 738, 739-40 (3d Cir. 2005) (vacating an order and remanding case where district court evaluated pretrial detainee's claim involving inadequate medical treatment under the same standards as Eighth Amendment claims). In Montgomery, the court of appeals noted its recent decision in Hubbard, which:
clarified that the Eighth Amendment only acts as a floor for due process inquiries into medical and non-medical conditions of pretrial detainees. While “the due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner,” Hubbard, 399 F.3d at 166 (citation omitted), the proper standard for examining such claims is the standard set forth in Bell v. Wolfish, . . . i.e., whether the conditions of confinement (or here, inadequate medical treatment)
amounted to punishment prior to an adjudication of guilt, Hubbard, 399 F.3d at 158.145 Fed.Appx. at 740 (emphasis and brackets in original).
The Eighth Amendment requires the inmate to show (1) a serious medical need, and (2) behavior on the part of prison officials that constitutes deliberate indifference to that need. Estelle, 429 U.S. at 104; see also Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Here, assuming Plaintiff Newman sustained a serious injury, the record reflects that Defendant Rauch attended to his injury and followed up with appropriate medications, X-ray, and referral to an outside specialist. Her response to Plaintiff Newman's medical needs can hardly be considered deliberately indifferent or so inadequate as to constitute punishment prior to an adjudication of guilt. See Montgomery, 145 Fed.Appx. at 740.
Plaintiff Newman's negligence claim against both Prime Care Defendants also fails because the record reflects no evidence that another inmate threw urine on him. Moreover, even if such an event occurred, there is no evidence that Defendant Rauch was made aware of the alleged incident. In addition, there is no record evidence that if this event did occur, that Plaintiff Newman sustained an injury.
Because Plaintiff's claims against the Prime Care Defendants are not meritorious, this factor weighs in favor of dismissal.
D. Summation of Poulis Factors
Here, all Poulis factors weigh in favor of dismissal.
IV. CONCLUSION
For the above reasons, it is respectfully recommended that this case be dismissed for failure to prosecute and for failure to comply with court orders pursuant to Federal Rule of Civil Procedure 41(b).
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.