Opinion
Civil No. 3:16-CV-1722
03-24-2017
JOHN WALSH, III, Plaintiff, v. ROBERT WALLACE, ESQ., Defendants
(Judge Mannion)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
In this case we are presented with a lawsuit filed by an eccentric litigant who now has failed to respond to a potentially dispositive motion, comply with court orders, or provide the court with a current address where we can communicate with him regarding the claims he has filed. The plaintiff, John Walsh is a frequent, albeit frequently unsuccessful, pro se litigant. Indeed, Walsh is the author of more than 30 quixotic pro se lawsuits filed with this court during the past several years. These lawsuits are often varied in their form, and eccentric in their content. However, in many instances Walsh's lawsuits are little more than odd polemics reflecting random observations on life by Walsh, polemics which masquerade as litigation.
A partial list of these frivolous filings includes the following civil actions filed within the past year: 3:15-CV-1103,Walsh v. Walsh et al filed 06/05/15 closed 08/13/15;3:15-cv-02012-ARC Walsh v. Walsh et al filed 10/16/15 closed 11/12/15 3:15-cv-02122-RDM Walsh v. Summers et al filed 11/05/15 closed 02/11/16 3:15-cv-02313-MEM Walsh v. Corbett filed 12/02/15 closed 12/02/15 3:15-mc-00452-RDM Walsh v. Verrilli filed 10/05/15 closed 07/26/16 3:16-cv-00503-RDM Walsh v. DeNaples et al filed 03/24/16 closed 05/17/16 3:16-cv-00834-ARC Walsh v. Greater Scranton Young Mens Christian Association et al filed 05/10/16 closed 05/20/16 3:16-cv-00872-RPC Walsh v. Rite Aid et al filed 05/13/16 closed 07/20/16 3:16-cv-00950-ARC Walsh v. Munley filed 05/20/16 closed 06/21/16 3:16-cv-00998-RPC Walsh v. Bambera, et al filed 05/26/16 closed 06/17/16 3:16-cv-01234-NQA Walsh v. Conaboy et al filed 06/22/16 closed 07/12/16 3:16-cv-01429-EMK Walsh v. Conaboy et al filed 07/13/16 closed 07/25/16 3:16-cv-01430-EMK Walsh v Wilding, et al filed 07/11/16 closed 08/02/16 3:16-cv-01440-EMK Walsh v. Pascal et al filed 07/13/16 closed 07/25/16 3:16-cv-01460-EMK Walsh v. Alejandro filed 07/18/16 closed 07/27/16 3:16-cv-01462-EMK Walsh v. Stark, 3:16-cv-01112-ARC Walsh v. Cardonick et al filed 06/10/16 closed 07/08/16 3:16-cv-01223-EMK Walsh v. Deleeum filed 06/21/16 closed 07/20/16 3:16-cv-01269-NQA Walsh v. Mariani et al filed 06/23/16 closed 07/12/16 3:16-cv-01422-EMK Walsh v. Saporito et al filed 07/08/16 closed 08/09/16 3:16-cv-01445-EMK Walsh v. McKee et al filed 07/13/16 closed 07/25/16 3:16-cv-01452-EMK Walsh v. The Lynett Family filed 07/14/16 closed 07/27/16 3:16-cv-01472-EMK Walsh v. Harhut et al filed 07/19/16 closed 07/22/16 3:16-cv-01494-EMK Walsh v. Barrasse et al filed 07/20/16 closed 07/28/16 3:16-cv-01495-EMK Walsh v. American Water et al filed 07/21/16 closed 07/29/16 3:16-cv-01498-EMK Walsh v. Fuentes et al filed 07/21/16 closed 07/29/16 3:16-cv-01560-SHR Walsh v. Brazil et al filed 07/27/16 closed 08/01/16.
Walsh initially filed a pro se in forma pauperis complaint on August 18, 2016 which alleged that the plaintiff sought a permit to engage in a protest on county court property in Scranton, but was denied this permit because he had failed to secure necessary liability insurance. Characterizing this decision as a violation of his First Amendment rights, Walsh sued eight individual and institutional defendants, including a state court judge, and several attorneys, demanding injunctive and declaratory relief, along with $10,000,000 in damages. (Doc. 1.) Along with this complaint the plaintiff filed a motion for leave to proceed in forma pauperis, (Doc. 2), which we granted. However, having carefully reviewed this complaint, we concluded that the pleading failed to state a claim upon which relief can be granted, and recommended that the complaint be dismissed without prejudice to the plaintiff attempting to amend this federal complaint to state a claim upon which relief may be granted in federal court. (Doc. 3.) The district court adopted this recommendation, (Doc. 5), and when Walsh failed to file an amended complaint in a timely fashion, we recommended dismissal of this action with prejudice. (Doc. 6.) Walsh then, belatedly, objected and sought further leave to amend his pleadings, which was granted by the district court.
On November 23, 2016, Walsh filed an amended complaint in this action. (Doc. 13.) The defendants moved to dismiss this complaint on January 31, 2017. (Doc. 31.) When Walsh failed to timely respond to this motion to dismiss, on March 9, 2017 we entered an order which instructed the plaintiff to file a response to this motion by March 23, 2017. (Doc. 34.) That order also informed Walsh that Local Rule 7.6 of the Rules of this Court imposed an affirmative duty on the plaintiff to respond to motions and warned Walsh in clear and precise terms that " 'Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency "if a party fails to comply with the [R]ule after a specific direction to comply from the court." Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991).' Williams v. Lebanon Farms Disposal, Inc.,No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). Therefore, a failure to comply with this direction may result in the motion being deemed unopposed and granted." (Id.)
Walsh has not responded to this motion and the time for a response has now passed. Furthermore, orders mailed by the Court to the plaintiff have recently been returned as undeliverable. (Docs. 35 and 36.) As a pro se litigant Walsh's failure to maintain an address where he could be reached itself violated the rules of this court; specifically, Local Rule 83.18, which provides that:
LR 83.18 Appearance of Parties Not Represented by Counsel.
Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action, such party shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served upon such party.
It is against the backdrop of these procedural defaults that this motion to dismiss will be deemed ripe for resolution. For the reasons set forth below, it is recommended that the motion to dismiss be granted and this case dismissed.
II. Discussion
A. Under The Rules of This Court This Motion Should Be Deemed Unopposed and Granted.
At the outset, under the Local Rules of this Court the plaintiff should be deemed to concur in this motion to dismiss, since the plaintiff has failed to timely oppose the motion, or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions and provides that
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.Local Rule 7.6 (emphasis added).
It is now well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency 'if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010).
Similarly, under the Local Rules of this Court the plaintiff should be deemed to have abandoned this lawsuit by failing to provide the court with an address where he can be reached, a direct violation of Local Rule 83.18. This violation of Local Rule 83.18, permits the court to find that the plaintiff has abandoned this litigation. In this circumstance, dismissal of this action for failure to abide by court orders or the rules of this court, and failure to prosecute, is fully justified. See, e.g., Juaquee v. Pike County Corr. Facility Employees, 3:12-CV-1233, 2013 WL 432611 (M.D. Pa. Feb. 1, 2013); Kuhn v. Capitol Pavilion, 1:11-CV-2017, 2012 WL 5197551 (M.D. Pa. Oct. 19, 2012); Educ. Mgmt. Services, Inc. v. Pennsylvania, 1:10-CV-00441, 2012 WL 2389874 (M.D. Pa. June 25, 2012); Olguin v. Burgerhoff, 1:12-CV-0003, 2012 WL 1580935 (M.D. Pa. May 4, 2012); Nowland v. Lucas, 1:10-CV-1863, 2012 WL 10559 (M.D. Pa. Jan. 3, 2012); Binsack v. Lackawanna County Dist. Attorney's Office, 3:08-CV-1166, 2011 WL 5840314 (M.D. Pa. Nov. 21, 2011); Washington v. Columbia County Prison, 3:CV-10-45, 2011 WL 98547 (M.D. Pa. Jan. 12, 2011).
In this case the plaintiff has not complied with the local rules, or this Court's order, by filing a timely response to this motion, or by updating an address where he may be contacted. Therefore, these procedural defaults by the plaintiff compel the court to consider:
[A] basic truth: we must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion ...." McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998).Lease v. Fishel, 712 F. Supp. 2d 359, 371 (M.D.Pa. 2010).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, "would actually violate the dual mandate which guides this Court and motivates our system of justice: 'that courts should strive to resolve cases on their merits whenever possible [but that]justice also requires that the merits of a particular dispute be placed before the court in a timely fashion'." Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the plaintiff has failed to comply with Local Rule 7.6 and 83.18 by filing a timely response to this motion to dismiss or provide a correct current address where he can be contacted by the court and opposing parties. This failure now compels us to apply the sanction called for under Rule 7.6 and 83.18 and deem the plaintiff to not oppose the motion.
B. Dismissal of this Case Is Also Warranted Under Rule 41.
Beyond the requirements imposed by the local rules of this court, Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: "If 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." Fed. R. Civ. P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court, and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002)(citations omitted). That discretion, however, while broad is governed by certain factors, commonly referred to as Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (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. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).Emerson, 296 F.3d at 190.
In exercising this discretion "there is no 'magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011)(quoting Briscoe v. Klem, 538 F.3d 252 (3d Cir. 2008)) Therefore, "[i]n balancing the Poulis factors, [courts] do not [employ] a . . . 'mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992)." Briscoe v. Klaus, 538 F.3d at 263. Consistent with this view, it is well-settled that " 'no single Poulis factor is dispositive,' Ware, 322 F.3d at 222, [and it is] clear that 'not all of the Poulis factors need be satisfied in order to dismiss a complaint.' Mindek, 964 F.2d at 1373." Briscoe v. Klaus, 538 F.3d at 263. Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson v. Thiel College, supra; Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007).
In this case, a dispassionate assessment of the Poulis factors weighs heavily in favor of dismissing this action. At the outset, a consideration of the first Poulis factor, the extent of the party's personal responsibility, shows that the delays in this case are entirely attributable to the plaintiff, who has failed to abide by court orders, and has otherwise neglected to litigate this case, or respond to defense motions.
Similarly, the second Poulis factor- the prejudice to the adversary caused by the failure to abide by court orders-also calls for dismissal of this action. Indeed, this factor-the prejudice suffered by the party seeking sanctions-is entitled to great weight and careful consideration. As the United States Court of Appeals for the Third Circuit has observed:
"Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment." Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir.1994) (internal quotation marks and citation omitted). Generally, prejudice includes "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." Id. at 874 (internal quotation marks and citations omitted). . . . However, prejudice is not limited to "irremediable" or "irreparable" harm. Id.; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.2003); Curtis T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir.1988). It also includes "the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy." Ware, 322 F.3d at 222.Briscoe v. Klaus, 538 F.3d at 259-60.
In this case the plaintiff's failure to litigate this claim or comply with court orders now wholly frustrates and delays the resolution of this action. In such instances, the defendants are plainly prejudiced by the plaintiff's continuing inaction and dismissal of the case clearly rests in the discretion of the trial judge. Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007) (failure to timely serve pleadings compels dismissal); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007) (failure to comply with discovery compels dismissal); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007) (failure to file amended complaint prejudices defense and compels dismissal).
When one considers the third Poulis factor-the history of dilatoriness on the plaintiff's part-it becomes clear that dismissal of this action is now appropriate. In this regard, it is clear that "'[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response . . . , or consistent tardiness in complying with court orders.' Adams, 29 F.3d at 874." Briscoe v. Klaus, 538 F.3d at 260-61 (some citations omitted). Here, the plaintiff has ignored and failed to respond to a motion to dismiss. The plaintiff has also failed to timely file pleadings, neglected to provide the court with a current address, and has not complied with orders of the court. Thus, the plaintiff's conduct displays "[e]xtensive or repeated delay or delinquency [and conduct which] constitutes a history of dilatoriness, such as consistent non-response . . . , or consistent tardiness in complying with court orders." Adams, 29 F.3d at 874.
The fourth Poulis factor-whether the conduct of the party or the attorney was willful or in bad faith-also cuts against the plaintiff in this case. In this setting we must assess whether this conduct reflects mere inadvertence or willful conduct, in that it involved "strategic," "intentional or self-serving behavior," and not mere negligence. Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 875 (3d Cir.1994). At this juncture, when the plaintiff has failed to comply with instructions of the Court directing the plaintiff to take specific actions in this case, and has violated the local rules, the Court is compelled to conclude that the plaintiff's actions are not accidental or inadvertent but instead reflect an intentional disregard for this case and the Court's instructions.
While Poulis also enjoins us to consider a fifth factor, the effectiveness of sanctions other than dismissal, cases construing Poulis agree that in a situation such as this case, where we are confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Briscoe v. Klaus, 538 F.3d 252, 262-63 (3d Cir. 2008); Emerson, 296 F.3d at 191. This case presents such a situation where the plaintiff's status as a pro se litigant severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. In any event, by entering our prior orders, and counseling the plaintiff on his obligations in this case, we have endeavored to use lesser sanctions, but to no avail. The plaintiff still declines to obey court orders, and otherwise ignores his responsibilities as a litigant. Since lesser sanctions have been tried, and have failed, only the sanction of dismissal remains available to the Court.
Finally, under Poulis we are cautioned to consider one other factor, the meritoriousness of the plaintiff's claims. In our view, however, consideration of this factor cannot save this particular plaintiff's claims, since the plaintiff is now wholly non-compliant with his obligations as a litigant. The plaintiff cannot refuse to address the merits of his claims, and then assert the untested merits of these claims as grounds for denying a motion to sanction him. Furthermore, it is well-settled that " 'no single Poulis factor is dispositive,' Ware, 322 F.3d at 222, [and it is] clear that 'not all of the Poulis factors need be satisfied in order to dismiss a complaint.' Mindek, 964 F.2d at 1373." Briscoe v. Klaus, 538 F.3d at 263. Therefore, the untested merits of the non-compliant plaintiff's claims, standing alone, cannot prevent imposition of sanctions.
In any event, a number of Walsh's claims appear to fail as a matter of law, yet another factor which favors dismissal of this lawsuit. The flaws in these claims are discussed below.
C. Many of Walsh's Claims Appear to Fail on Their Merits
Walsh's amended complaint alleges that the plaintiff is a mentally ill, homeless indigent, who decided to pitch a tent and reside on the grounds of the Lackawanna County Courthouse as a form of protest. (Doc. 13.) Walsh was denied a permit for this type of activity because he failed to satisfy the facially neutral liability insurance requirement prescribed by the county for such activities. (Id.) Nonetheless, Walsh engaged in this protest activity, and the county sheriff responded to this unauthorized activity by evicting Walsh and seizing his tent and effects. (Id.) According to the defendants, Walsh is currently pursuing litigation in state court to recover this property. That litigation apparently remains on-going. On the basis of this factual recital Walsh's amended complaint alleges that the defendants have violated his rights under the First and Fourth Amendments to the United States Constitution. Walsh also brings a "class of one" equal protection claim against these defendants.
While Walsh has not chosen to defend any of these claims in response to the defendants' motion to dismiss, it appears that Walsh faces substantial legal hurdles in attempting to assert any of these constitutional claims. At the outset, Walsh's class of one equal protection argument faces a stiff and exacting burden of proof. "The Supreme Court has held that a ' "class of one" ' can attack intentionally different treatment if it is ' "irrational and wholly arbitrary." ' Village of Willowbrook v. Olech, 528 U.S. 562, 564, 565, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (internal citations omitted) (per curiam)." Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir. 2004). "The 'irrational and wholly arbitrary' standard is doubtless difficult for a plaintiff to meet," id., and in this case Walsh points to nothing which would suggest that the conduct of the defendants was wholly irrational and arbitrary. Therefore this presently undefended claim likely fails.
Walsh's Fourth Amendment claims, which appear to be premised upon the seizure of his tent and personal property, are also likely unavailing given the uncontested fact that Walsh has state law remedies available to him for the return of his property, which the defendants assert he is pursuing. Indeed, as this court has observed when dismissing an identical claim brought by Walsh under the guise of a separate lawsuit: "The deprivation by state action of a constitutionally protected interest in life, liberty or property is not in itself unconstitutional, 'what is unconstitutional is the deprivation of such an interest without due process of law.' Zinermon v. Burch, 494 U.S. 113, 125 (1990). Thus, a property owner whose property has been taken by the state must utilize available procedures for obtaining compensation before bringing a § 1983 action based on the taking." Walsh v. Brazil, Civil No. 3:16-CV-1560 (Doc. 4, pp.1-2) (Rambo, J.)(emphasis in original). Since it appears undisputed that Walsh has not yet fully exhausted his state court remedies on any property taking claims in this case, these claims likely fail as a matter of law.
Finally, Walsh's pleadings seem to contain information which actually tends to rebut his First Amendment claim. Walsh's complaint alleges that the plaintiff sought a permit to engage in a protest on county court property in Scranton, but was denied this permit because he had failed to secure necessary liability insurance. While Walsh casts this decision to require liability insurance as a First Amendment violation, he should understand that narrowly-tailored and content neutral insurance requirements relating to the use of public forums often do not offend the Constitution. See iMatter Utah v. Njord, 980 F. Supp. 2d 1356, 1370 (D. Utah 2013), aff'd, 774 F.3d 1258 (10th Cir. 2014)(collecting cases discussing insurance requirements and the First Amendment). Given this First Amendment jurisprudence which sustains the constitutionality of neutral, narrowly tailored liability insurance requirements, it is hard to see how the actions of the defendants in enforcing this liability insurance requirement with respect to an erratic and litigious permit applicant transgresses some basic constitutional right.
But even if we accepted that Walsh had stated a colorable claim for damages, that claim would likely still fail as a matter of law. In this context, we must also remain mindful of the fact that, while Walsh must show the deprivation of a right secured by the United States Constitution or the laws of the United States, satisfying these elements alone does not guarantee that he is entitled to recover damages. Government officials performing "discretionary functions," are insulated from suit if their conduct did not violate a "clearly established statutory or constitutional right[] of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999); see also Pearson v. Callahan, 555 U.S. 223 (2009). This doctrine, known as qualified immunity, provides officials performing discretionary functions not only defense to liability, but also "immunity from suit." Crouse v. S. Lebanon Twp., 668 F. Supp. 2d 664, 671 (M.D. Pa. 2009) (Conner, J.) (citations omitted). Qualified immunity
balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact."Pearson, 555 U.S. at 231.
Determinations regarding qualified immunity, and its application in a given case, require a court to undertake two distinct inquiries. First, the court must evaluate whether the defendant violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201-02 (2001), abrogated in part by Pearson, 555 U.S. 223; Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007); Williams v. Bitner, 455 F.3d 186, 190 (3d Cir. 2006). If the defendant did not actually commit a constitutional violation, then the court must find in the defendant's favor. Saucier, 533 U.S. at 201. If the defendant is found to have committed a constitutional violation, the court must undertake a second, related inquiry to assess whether the constitutional right in question was "clearly established" at the time the defendant acted. Pearson, 555 U.S. at 232; Saucier, 533 U.S. at 201-02.
The Supreme Court has instructed that a right is clearly established for purposes of qualified immunity if a reasonable state actor under the circumstances would understand that his conduct violates that right. Williams, 455 F.3d at 191 (citing Saucier, 533 U.S. at 202). However, the Supreme Court has also cautioned us that there must be great factual congruence between a defendant's conduct and settled case law in order to defeat a claim of qualified immunity. Indeed, the Supreme Court has expressly admonished us that "qualified immunity protects actions in the ' "hazy border between excessive and acceptable [conduct under the Constitution]." ' Brosseau, supra, at 201, 125 S.Ct. 596 (quoting Saucier, 533 U.S., at 206, 121 S.Ct. 2151; some internal quotation marks omitted)." Mullenix v. Luna, 136 S. Ct. 305, 312, 193 L. Ed. 2d 255 (2015). In this case, given the settled case law which seems to permit the course of conduct followed by local officials applying facially neutral rules to Walsh's protest activities it cannot be said that the actions of these officials violated Walsh's clearly established constitutional rights. Therefore, any damages claims in this case would likely also fail on qualified immunity grounds.
In sum, then, this merits analysis reveals that Walsh's claims against these defendants likely fail as a matter of law on a number of grounds. Therefore, we find that all of the Poulis factors call for dismissal of this case.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' Motion to Dismiss (Doc. 31) be GRANTED.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 24th day of March 2017.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge