Opinion
Civil Action 21-272E
03-11-2024
THORNE THOMAS, Plaintiff, v. CO1 NEWMAN; CO1 BECKER; SGT. YOUNG; CO1 WILLIAMS; DEPARTMENT OF CORRECTIONS OPERATION OF POPULATION MANAGEMENT, SCI Houtzdale-, SCI HOUTZALE INFIRMARY; SCI HOUTZDALE MAILROOM; SCI BENNER TRANSFERRING SGT.; CO1 HUMMEL; SCI HOUTZDALE; and DEPARTMENT OF CORRECTIONS, Defendants.
District Judge J. Nicholas Ranjan
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Thome Thomas (“Plaintiff”) brings this pro se civil rights action arising out of events that allegedly occurred while he was incarcerated in state prison. ECF No. 23. For the reasons that follow, it is respectfully recommended that the Court dismiss Plaintiff's claims for failure to prosecute.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began this action on October 1, 2021, by filing a Motion for Leave to Proceed in forma pauperis (“IFP”), together with a proposed Complaint. ECF No. 1. On October 14, 2021, the Court entered a Deficiency Order instracting Plaintiff to correct various itemized filing deficiencies by November 15, 2021. ECF No. 4. Plaintiff corrected some, but not all, of the itemized deficiencies by this deadline.
A Second Deficiency Order was issued on December 20, 2021. ECF No. 8. In that order, the Court explained to Plaintiff which Defendants' service forms were outstanding, and he was ordered once again to provide service copies of the Complaint. Plaintiff responded by providing completed forms, but he yet again failed to provide copies of the Complaint for service.
On February 9,2022, the Court entered an Order to Show Cause directing Plaintiff to show good cause by March 11, 2022, why his case should not be dismissed for failure to prosecute and to comply with orders of this Court. ECF No. 9. The Court warned Plaintiff that any response that did not include service copies of the Complaint may result in the dismissal of this case.
Plaintiff then submitted correspondence, which the Court construed as a request for extension of time to respond to the Order to Show Cause and extended the deadline for Plaintiff s response until May 27, 2022. ECF Nos. 10 and 14. However, he still did not submit service copies by this deadline.
On June 6, 2022, the undersigned submitted a Report and Recommendation, (“R&R”) recommending that Plaintiffs claims be dismissed without prejudice based on his failure to comply with the Court's orders. ECF No. 17.
Plaintiff objected to the R&R, and he requested more time to comply. ECF No. 18. United States District Judge J. Nicholas Ranjan directed the Clerk of Court to return a copy of Plaintiff's Complaint to him and held the R&R in abeyance until October 17,2022, to provide Plaintiff with an opportunity to make and return copies of his Complaint. ECF Nos. 19 and 20.
As of November 1, 2022, the Court received some of the requested service copies. ECF No. 21. Based on this, the R&R was withdrawn. Id. On November 7, 2022-over a year after his began this action-the IFP Motion was granted, and Plaintiffs Complaint was filed. ECF Nos. 22 and 23.
The Court ordered that Plaintiffs Complaint be served on the named Defendants. ECF No. 24. In the Service Order, the Court directed:
IT IS FURTHER ORDERED that Plaintiff must keep the court advised of his/her current address at all times throughout this litigation. SPECIFICALLY, Plaintiff is ordered to notify the court in writing as to any and all address changes. Plaintiffs failure to do so may result in dismissal of this action.Id. at 3.
On March 2, 2022, Defendants answered the Complaint. ECF No. 33. The Court entered the operative Case Management Order, which required Plaintiff to file a pretrial statement by July 5,2023. ECF No. 34. Plaintiff did not file any pretrial statement, however, and he did not update his address of record after he was released from prison.
The Court received notice in Plaintiff's separate action, Thomas v. Jones, No. 19-220, of his release from prison.
On August 3, 2022, the Court entered an Order to Show Cause, directing Plaintiff to show good cause by August 24, 2023, why his claims should not be dismissed based on his failure to file a pretrial statement and to update his address of record. ECF No. 42.
After the deadline for Plaintiffs response to the Order to Show Cause, Plaintiff notified the Court of his new address and requested an extension of time to respond. ECF No. 46. The Court granted an extension, and it directed Plaintiff to respond to the Order to Show Cause by October 26, 2023. ECF No. 47.
To date, Plaintiff still has not filed any response to the Order to Show Cause and has not submitted his pretrial statement.
B. DISCUSSION
Punitive dismissal of an action for failure to comply with court orders is left to the discretion of the court. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). In determining whether an action should be dismissed as a sanction against a party the court must consider six factors. These factors, as set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984), are as follows.
(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.
(6) The meritoriousness of the claim or defense.
Upon review, the Poulis factors favor dismissal. First, as a pro se litigant, Plaintiff is solely responsible for prosecuting his claims. Second, Plaintiffs failure to prosecute this action has prejudiced Defendants by delaying the timely resolution of this case.
As for the third and fourth factors, Plaintiff has a history of dilatoriness in disregarding this court's orders and deadlines. Given Plaintiffs repeated failures, this conduct appears to be willful.
The fifth factor to consider is the effectiveness of sanctions other than dismissal. Because Plaintiff is proceeding IFP, it does not appear that monetary sanctions are appropriate. Moreover, Plaintiffs lack of meaningful participation suggests that Plaintiff has no interest in currently prosecuting this action. For these reasons, dismissal is the most appropriate sanction.
The sixth factor, the merits of the claim, should also be weighed against Plaintiff. Plaintiffs Complaint is difficult to follow, and it fails to articulate any clearly supported claim. In his Complaint, he states that events relevant to his claim occurred on December 20, 2019, and he describes his claims as follows.
Capt. Jones - Excessive Force, Cruel and Unusual Punishment, Racial Slur and, Assault. John E. Wetzel - Violated my 1st and 6th Amendment. COI Bickford -refuse to give me my kufi and use of excessive force. RN Dobson - refuse me medical attention and deliberate indifference. COI-Shaffer, COI-Rummel, COI-Bailey, COI-Ransdorf, COI-Fraser, and COI-Snedden violated my First, 6th, 5th, 8th and 14th Amendment, excessive Force and assault.ECF No. 23 at 11.
Plaintiff does not describe the facts giving rise to these claims. While Plaintiff attaches various grievances as exhibits, those grievances relate to a wide variety of unrelated incidents. For example, he submits grievances including food-related complaints of not receiving his religious diet food tray, tampering with his meals, and not receiving extra juice or trays when others did; his legal mail not being sent out; not receiving his socks or boxers upon request during “legal exchange,” despite a white inmate receiving those same materials; prison officials making threatening or racist comments or acting in a sexually harassing manner; not receiving shower or yard time when he received a misconduct; not being given a face mask; being charged a co-pay for a COVID-19 related medical visit; being forced to interact with prison officials against whom he had filed complaints; being improperly transferred to a facility where he had prior issues with the staff; and prison officials not properly investigating or addressing his complaints. ECF No. 23-1. Plaintiff does include a grievance regarding a prison official removing and not returning his kufi and thermals during a strip search, but he does not identify this official as COI Bickford or allege the use of excessive force as stated in his claims. Id. at 1. Asa result, the specific nature of Plaintiffs claims is unclear.
Even assuming Plaintiff states some viable claim within the many grievances he attaches to his Complaint, however, not all of the Poulis factors need to be satisfied to justify the dismissal of a complaint for lack of prosecution. Hildebrand v. Allegheny Cnty., 923 F.3d 128,132 (3d Cir. 2019). Because the balance of factors strongly supports dismissal, Plaintiff's claim should be dismissed based on lack of prosecution.
C. CONCLUSION
For the foregoing reasons, it is respectfully recommended that this action be dismissed with prejudice for failure to prosecute.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Honorable J. Nicholas Ranjan, United States District Judge