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finding that a pro se litigant was responsible for failing to comply with the Court's rules and orders
Summary of this case from Welfel v. BarreOpinion
CIVIL 1:19-CV-01700
06-17-2022
KENNETH CANNON, Plaintiff, v. KERI MOORE, et al., Defendants.
Mariani, Judge
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
I. Introduction.
Plaintiff Kenneth Cannon contends that the defendants violated his rights based on their refusal to allow him to pray in the visiting room at the State Correctional Institution at Mahanoy (“SCI Mahanoy”). Many of Cannon's claims have been dismissed; the only remaining claims are Cannon's 42 U.S.C. § 1983 and Pennsylvania Constitutional claims for damages. Currently pending is a motion for or summary judgment as to those remaining claims filed by the named defendants. Cannon has not responded to that motion. Nor has he responded to orders to show cause issued by the court. After analyzing the applicable factors, we conclude that Cannon has abandoned this action and that the case should be dismissed based on Cannon's failure to prosecute this action.
II. Background and Procedural History.
Cannon, who is proceeding pro se, began this action by filing a complaint. He later filed an amended complaint. And with leave of court, on June 18, 2020, he filed a second amended complaint naming as defendants: (1) Keri Moore, Assistant to the Chief Grievance Officer for the Pennsylvania Department of Corrections (“DOC”); (2) Ulli Klemm, Administrator of Religious and Volunteer Services with the DOC; (3-5) John Doe 1, John Doe 2, and John Doe 3, members of the DOC's Religious Accommodation Request Review Panel; (6) Theresa DelBalso, Superintendent of SCI Mahanoy; and (7) Jeanne MacKnight, a corrections classification and program manager at SCI Mahanoy. Cannon named the defendants in both their individual and official capacities. He brought claims under 42 U.S.C. § 1983, the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq., and the Pennsylvania Constitution.
Cannon alleges that he is a devout Muslim, and that he adheres to the tenets of Islam, one of which is the daily obligation to offer Salat, a prayer ritual that involves a specific procedure. Doc. 34 ¶¶ 33-34. He explains that the procedure for him, as an able bodied adult, to offer Salat includes “standing, bowing, and prostrating at a kneeling position.” Id. ¶ 35. This procedure can be done in an area of two feet by four feet, and it takes three to five minutes to complete. Id. ¶¶ 3637. Cannon is required by the tenets of Islam to perform Salat five times a day at specific times, which times vary according to the times of sunrise and sunset. Id. ¶¶ 38-39. He alleges that he strictly observes the requirements of Salat “as he believes such to be a necessity for proper observance of Islam.” Id. ¶ 41.
Cannon asserts that visitation for prisoners within the DOC is permitted pursuant to a Pennsylvania statute and DC-ADM 812, and visitation for prisoners in general population includes contact visits in an open setting. Id. ¶¶ 42-43. At SCI Mahanoy, visits are permitted from 8:30 a.m. until 3:30 p.m., Thursday through Sunday. Id. ¶ 44. The visiting room at SCI Mahanoy contains four rows of seats with approximately 24 seats per row, six round tables for larger groups of visitors, and an empty area of approximately seven feet between the end of the rows of seats and the back wall. Id. ¶¶ 45, 47, 48. Once seated in the visiting room, prisoners are not permitted to leave their seats except to use the restroom or to begin the process to end the visit. Id. ¶ 46.
In November of 2018, Melissa Gray visited Cannon at SCI Mahanoy. Id. ¶¶ 53-54. The visit started at approximately 9:15 a.m., and Cannon and Gray took seats in one of the rows of seats. Id. ¶¶ 54-55. At about 11:00 a.m., Cannon asked the officer assigned to the visiting room for permission to leave his seat, with Gray, to perform his offering of Salat. Id. ¶ 56. His request was to make the Salat offering for the afternoon prayer, which is “a silent prayer offering that includes a process of standing, bowing, and prostrating while kneeling.” Id. ¶ 57. The officer denied Cannon's request, and Cannon was unable to perform his Salat offering, which meant that he “was in noncompliance with the tenets of his faith.” Id. ¶¶ 5860. Gray was also unable to make the Salat offering in the visiting room. Id. ¶ 61. Cannon continued his visit with Gray until approximately 2:30 p.m., at which time he returned to his housing unit without further incident. Id. ¶62.
After his visit with Gray, “Cannon attempted to seek resolution of the matter using the appropriate administrative remedies available to him with the Department.” Id. ¶ 63. On November 25, 2018, he submitted a DC-135A Request to Staff form to defendant DelBalso requesting authorization to perform the Salat offering in the visiting room according the dictates of Islam. Id. ¶¶ 64-65. DelBalso denied that request. Id. ¶ 67.
On December 18, 2018, Cannon submitted a Religions Accommodation Request form pursuant to DC-ADM 819 requesting authorization to perform the Salat offering while attending visits. Id. ¶¶ 68-69. That request, which was reviewed by a panel consisting of the John Doe defendants, was denied, and the decision denying Cannon's request was issued by defendant Klemm. Id. ¶¶ 70-72. The reasons cited in the decision denying Cannon's request included: limited space in the visiting room; because of the high traffic in the visiting room, it is not always clean; and allowing inmates to engage in demonstrative forms of prayer would create a safety concern and would interfere with the privacy of the others during their visits. Id. ¶ 74. According to Cannon, the cited reasons for denying his request were without merit, and the DOC had no legitimate penological reason for denying his request. Id. ¶¶ 75-76. Cannon alleges that the visiting room has ample space and is sufficiently clean to allow prisoners to perform the Salat offering, and prisoners have engaged in other demonstrative forms of prayer in the visiting room without raising any security issues and without interfering with the privacy of others. Id. ¶¶ 49-51. Cannon alleges that defendant Klemm and the Doe defendants failed to properly investigate his request so as to be able to address his request in a logical, fact-based manner. Id. ¶ 77.
In April of 2019, Cannon filed a grievance seeking authorization to make the proper offering of Salat while in the visiting room. Id. ¶¶ 78-79. Defendant MacKnight issued the decision denying Cannon's grievance. Id. ¶¶ 81-82. Cannon then appealed the denial of his grievance to defendant DelBalso, and after she denied his appeal, he filed an Appeal to Final Review, which was denied by defendant Moore. Id. ¶¶ 86-90, 94-96. According to Cannon, MacKnight, DelBalso, and Moore did not offer a rationale for denying his request, their decisions were not based on fact or logic, and they had no legitimate penological reason for denying his request to be allowed to offer Salat while in the visiting room. Id. ¶¶ 83-85, 91-93, 97-99.
Cannon alleges that because he has been unable to obtain authorization to offer Salat while in the visiting room, he is unwilling to receive visits. Id. ¶ 100- 01. He explains that he is unwilling to forego his Salat offering while attending visits, and he “has been and continues to be made to choose between receiving visits and performing a required tenet of his religious faith, offering Salat.” Id. ¶¶ 101-02.
Cannon claims that the defendants' actions violate his First Amendment right to the free exercise of religion and his Fourteenth Amendment rights to due process and equal protection. Id. ¶¶ 104-05. He also claims that the defendants' actions violate RLUIPA, RFRA, and the Pennsylvania Constitution. Id. ¶¶ 104-07. Cannon alleges that he “exhausted his administrative remedies as provided by the Department related to these issues and claims set forth in this Complaint.” Id. ¶ 103. He seeks declaratory and injunctive relief as well as compensatory and punitive damages. Id. at 11.
The court dismissed the following claims: the RLUIPA claim against the defendants in their individual capacities, the RLUIPA claim for damages against the defendants in their official capacities, the RFRA claim, and the 42 U.S.C. § 1983 claims for damages against the defendants in their official capacities. See doc. 46. Defendants Klemm, MacKnight, Moore, and DelBalso then filed an answer to the second amended complaint. See doc. 48.
On August 2, 2021, Cannon filed a change of address, which indicated that he was no longer incarcerated at SCI Mahanoy. See doc. 49. The defendants then filed a “Motion to Dismiss for Suggestion of Mootness.” Doc. 50. The defendants also filed a brief in support of that motion arguing that Cannon's claims for prospective declaratory and injunctive relief are moot given his release from SCI Mahanoy and, therefore, the court lacks jurisdiction over such claims. Doc. 51. Although we ordered Cannon to file a brief in opposition to that motion, see doc. 52, he did not do so. And given that Cannon had been released from custody, we concluded that his claims for declaratory and injunctive relief, which relate to the visiting practices at SCI Mahanoy, were moot. See doc. 56 at 11. Thus, we recommended that the court grant the defendants' motion to dismiss those claims. Id. at 11-12. Adopting that recommendation, the court dismissed Cannon's claims for declaratory and injunctive relief under RLUIPA, 42 U.S.C. § 1983, and the Pennsylvania Constitution. See doc. 62. Thus, the only claims now remaining are Cannon's 42 U.S.C. § 1983 and Pennsylvania Constitutional claims for damages.
Since Cannon had not identified the John Doe defendants such that the Marshal can serve those defendants, we ordered Cannon to show cause, on or before November 8, 2021, why the claims against the John Doe defendants should not be dismissed in accordance with Fed.R.Civ.P. 4(m). See doc. 55 at 2. We warned Cannon that were he to fail to show cause, we would recommend that the claims against the John Doe defendants be dismissed. Id. Cannon has not responded to that show cause order.
On October 22, 2021, defendants Klem, MacKnight, Moore, and DelBalso filed a motion for summary judgment, a statement of material facts, and supporting documents. See docs. 57, 58. After requesting and receiving an extension of time, the defendants filed their brief in support of their motion for summary judgment on November 22, 2021. See doc 61. After Cannon failed to file a brief or other documents in opposition to the motion for summary judgment, we observed that it appeared that Cannon abandoned this action, and we explained that the action may be dismissed based on his failure to prosecute:
Generally, a dispositive motion may not be granted merely because it is unopposed. But when a plaintiff fails to prosecute an action or fails to comply with a court order, the court may dismiss the action pursuant to Fed.R.Civ.P. 41(b). Here, Cannon has failed to file a brief in opposition to the defendants' motion for summary judgment or a response to the defendants' statement of material facts, as required by M.D. Pa. L.R. 56.1. In fact, Cannon has not filed anything in this case since August 2, 2021, when he informed the court of his new address after he was released from prison. It appears that Cannon may have abandoned this lawsuit.Doc. 63 at 1-2. We ordered Cannon to show cause, on or before March 18, 2022, why this action should not be dismissed pursuant to Fed.R.Civ.P. 41(b) because he has failed to prosecute this action. Id. at 2. And we warned him that if he fails to show cause, we may deem him to have abandoned this lawsuit, and we may recommend that the case be dismissed. Id. Cannon has not responded to this show cause order.
III. Discussion.
A. Under the rules of this court, Cannon should be deemed not to oppose the defendants' motion.
At the outset, under the Local Rules of this court, Cannon should be deemed not to oppose the defendants' motion for summary judgment since he has failed to oppose that motion.
Local Rule 7.6 imposes an affirmative duty on a litigant to respond to motions and provides that “[a]ny party who fails to comply with this rule shall be deemed not to oppose such motion.” M.D. Pa. L.R. 7.6. At the time the case was filed, Cannon received a copy of the court's Standing Practice Order, which set forth his obligations with respect to responding to motions. See doc. 6.
In this case, Cannon has not complied with Local Rule 7.6. Nor has he shown cause, after being ordered to do so, why this case should not be dismissed. These procedural defaults compel us 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. ...Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010) (quoting McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)). 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.
Such basic principles of fairness apply here. In this case, Cannon failed to comply with Local Rule 7.6 by failing to file a brief in opposition to the pending motion for summary judgment. Nevertheless, Cannon's failure to file a brief in opposition alone is not sufficient for the court to dismiss the case. In Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991), the Third Circuit reversed a district court's dismissal based on the pro se plaintiff's failure to file a brief in accordance with a local rule of court. The Third Circuit stated that failure to obey the local rule should not form the basis for dismissal without an analysis of the merits of the case. Id. at 30. It noted that dismissal was not to be ruled out if the party was represented by an attorney and in fact did not oppose the motion. Id. It also noted: “Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked. Thus, our holding is not broad.” Id. at 30.
Although this caveat from the Stackhouse case might suggest that we could grant the pending motion based on Cannon's failure to file a brief in opposition after being ordered show cause why the court should not dismiss the action, the Third Circuit has subsequently declined “to adopt an interpretation of Stackhouse under which a district court may dismiss a case solely because a plaintiff misses a briefing deadline set forth in a local rule or court-ordered briefing schedule.” Hernandez v. Palakovich, 293 Fed.Appx. 890, 895 (3d Cir. 2008). Rather, the Third Circuit has held that before dismissing a case as a sanction for failure to follow a court rule or court order, a court must consider the factors set forth in the seminal Poulis case. Id. at 894 (citing Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984)); see also Shuey v. Schwab, 350 Fed.Appx. 630, 633 (3d Cir. 2009) (“Poulis has been cited too often and is too deeply ingrained in the jurisprudence of this court and the district courts of this circuit for a court to assume that a party's failure to respond to a motion to dismiss can be regarded as an abandonment of the claim. Poulis governs the District Court's decision to dismiss the Shuey's claim, and it was error to dismiss without first considering the Poulis factors.”). Thus, we turn to a consideration of the Poulis factors.
B. Consideration of the Poulis factors warrants dismissal of this case.
Cannon has failed to prosecute this action, and in fact, he has abandoned this action. Thus, we recommend that the court dismiss this action pursuant to Fed.R.Civ.P. 41(b).
The court may dismiss an action under Fed.R.Civ.P. 41(b) if the plaintiff fails to prosecute a case or to comply with court rules or court orders. Even though dismissal is an available sanction, it is a drastic sanction that “should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). In other words, “cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019).
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). But that discretion, while broad, is governed by the following factors, commonly referred to as the Poulis factors, which the Court must balance in deciding whether to dismiss a case:
(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, 747 F.2d at 868. “The court should consider all six factors but need not find all six to award sanctions.” United States v. Brace, 1 F.4th 137, 143 (3d Cir. 2021). And no single factor is dispositive. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). In this case, an assessment of the Poulis factors leads us to conclude that this action should be dismissed.
The first Poulis factor is the extent of the party's personal responsibility. A pro se litigant is personally responsible for failure to comply with the Court's rules and orders. In this case, because Cannon is proceeding pro se, he is responsible for his failure to litigate this case.
The second Poulis factor is prejudice to the adversary. Examples of prejudice are “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.” Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. Ware, 322 F.3d at 222. “[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Id. In this case, Cannon's failure to litigate this case and comply with court rules frustrates and delays resolution of this action, and so, such failure to litigate can be seen to prejudice the defendants, who seek a timely resolution of the case.
The third Poulis factor is a history of dilatoriness. While “conduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness,'” Briscoe, 538 F.3d at 261, “[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders.” Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994). A “party's problematic acts must be evaluated in light of [his] behavior over the life of the case.” Id. at 875. In this case, Cannon has a history of dilatoriness. He failed to respond to the show cause order regarding the John Doe defendants. He failed to respond to the pending motion for summary judgment. Moreover, he failed to do so, or explain why he failed to do so, even though the court ordered him to show cause why this case should not be dismissed. And this after the court noted that if he failed to show cause, we may deem him to have abandoned this action. Thus, Cannon has a history of dilatoriness.
The fourth Poulis factor is whether the conduct was willful or in bad faith. “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Here, Cannon failed to respond to the show cause orders of the court. These failures lead to an inference that Cannon has willfully abandoned this case.
The fifth Poulis factor is the effectiveness of alternate sanctions. Dismissal is a sanction of last resort, and it is incumbent upon a court to explore the effectiveness of lesser sanctions before ordering dismissal. Poulis, 747 F.2d at 868. Cannon is proceeding pro se and in forma pauperis, and there is no evidence to support a reasonable inference that he would be able to pay monetary sanctions. Therefore, monetary sanctions, including attorney's fees and costs, would not be an effective sanction in this case. Moreover, Cannon's failure to prosecute this action even in the face of orders to show cause leads to an inference that further orders to him would not be effective. In this case, no sanction short of dismissal would be effective.
The sixth and final Poulis factor is the meritoriousness of the claim. In this inquiry, a claim will be deemed meritorious when the allegations of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. Here, as set forth above, several of Cannon's claims have survived the pleading stage. Thus, we cannot say that those claims are without merit. But consideration of this factor cannot save Cannon's case since Cannon is now wholly noncompliant with his obligations as a litigant.
In sum, the Poulis factors weigh in favor of dismissal. Cannon has abandoned this case. Thus, we will recommend that the court dismiss the case pursuant to Fed.R.Civ.P. 41(b). And in light of that recommendation, we will also recommend that the court dismiss the pending motion for summary judgment as moot. See Risher v. Wetzel, No. 3:17-CV-1659, 2020 WL 618655, at *1 (M.D. Pa. Feb. 10, 2020) (dismissing action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and dismissing pending motion for summary judgment); Ivanitch v. Donuts, No. CV 3:18-1783, 2019 WL 5884637, at *2 (M.D. Pa. Nov. 12, 2019) (dismissing action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and dismissing pending motion to dismiss as moot).
IV. Recommendation.
Based on the foregoing and given that Cannon has abandoned this action, we recommend that the court dismiss this action in accordance with Fed.R.Civ.P. 41(b), and that the court dismiss as moot the pending motion for summary judgment (doc. 57).
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 17th day of June, 2022.