Opinion
1:19-cv-00223-SPB-RAL (Erie)
07-30-2021
WARREN EASLEY, Plaintiff v. REUBERG, et al. Defendants
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
The undersigned ordered the Plaintiff to file his pretrial statement by July 19, 2021. ECF No. 79. He has failed to submit one. That Order warned the Plaintiff that “failure to file a Pretrial Statement in accordance with this Order will result in a Recommendation that this action be dismissed for failure to prosecute.” Id. The undersigned set an original deadline of November 19, 2020, for Easley's pretrial statement. ECF No. 44. Since then, Easley has allowed seven months and several orders setting new deadlines for his pretrial statement to pass without filing one. Now, the undersigned respectfully recommends that the Court exercise its discretion and dismiss Easley's action with prejudice for failure to prosecute because all six factors of the balancing test laid out by the United States Court of Appeals for the Third Circuit favor dismissal. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984).
II. Report
Plaintiff Warren Easley (Easley), an inmate in the custody of the Pennsylvania Department of Corrections (DOC), initiated this lawsuit by filing pro se a motion to proceed in forma pauperis. ECF No. 1. He sued several DOC employees and outside medical providers for violating his civil rights pursuant to 42 U.S.C. § 1983. ECF No. 8.
The Court of Appeals for the Third Circuit has set out a six-factor balancing test to guide a court in determining whether a case or claim should be dismissed for failure to prosecute. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 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 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. There is no “magic formula” or “mechanical calculation” to determine whether a case should be dismissed for failure to prosecute, Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992), and not all of the six factors need to support dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Rather, the court must “properly consider and balance” each of the six factors based on the record. See Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (citing Poulis, 747 F.2d at 868).
As recently emphasized by the Court of Appeals, “dismissal with prejudice is an ‘extreme' sanction” that courts should use as a “last, not first, resort.” Hildebrand, 2019 WL 1783540, at *3 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). Close calls should “be resolved in favor of reaching a decision on the merits.” Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, the Court of Appeals “has not hesitated to affirm the district court's imposition of sanctions, including dismissals in appropriate cases.” Id. (citing Poulis, 747 F.2d at 867 n. 1).
Turning to the first Poulis factor, the Court must consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams, 29 F.3d at 873 (“[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.”). Easley has allowed more than seven months to pass since the original deadline to file his pretrial statement without submitting one. The Court allowed Easley some leaway earlier in the case when he told the Court on February 5, 2021, that he has had trouble receiving mail from the Court due to reasons outside his control, including the Covid-19 pandemic. ECF No. 61. But allowances only go so far. Easley has filed nothing on the docket since March 5, 2021. ECF No. 68. In the more than four months since then, he has not otherwise communicated with the Court about missing any of the nine entries filed on the docket. Because “Plaintiff is proceeding pro se, ” he is solely “responsible for his own actions, ” including his failure to respond to orders from the Court. See, e.g., Colon v. Karnes, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012). This factor weighs heavily in favor of dismissal.
The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[, ] the excessive and possibly irremediable burdens or costs imposed on the opposing party, ” Adams, 29 F.3d at 874, and “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). Although Dr. Renberg already moved for summary judgment, the Corrections Defendants have not because they sought to prepare their evidence and arguments in response Easley's statement of his case in his pretrial statement. The Court granted the Corrections Defendants' motion for an extension of time to file summary judgment, giving them thirty days to file their motion after Easley submitted a pretrial statement. ECF No. 79. Among the reasons the Court's Local Rules require filing a pretrial statement is to put defendants on notice of the case, evidence, and witnesses that the plaintiff plans to present, allowing them to make informed litigation decisions. Easley's “continued failure to communicate with the Court and continued inaction frustrates and delays resolution of this action” and prevents the Defendants from receiving a timely adjudication of his claims. See Mack v. United States, 2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019) (“[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case.”). This factor favors dismissal.
The third Poulis factor weighs strongly in favor of dismissal because Easley has a history of dilatoriness. Easley first received a deadline of November 19, 2020, to submit a pretrial statement from the initial case management order. ECF No. 44. When he missed this date, the Corrections Defendants filed a motion to dismiss for lack of prosecution. ECF No. 47. The Court denied the motion to dismiss and also ordered Easley to “show cause” explaining his failure to file a pretrial statement, or, in the alternative, file his pretrial statement by December 29, 2020. Id. That date came and went, so the Corrections Defendants and Defendant Renberg each moved to dismiss for lack of prosecution. ECF Nos. 49, 50. The Court ordered Easley to file a brief in response by February 10, 2021. ECF No. 55. Instead of a pretrial statement, Easley filed a “Motion to correct the record” on February 5, 2021. ECF No. 61. Easley explained that he had stated the wrong date in his complaint for the beginning of his “hunger strike” and wanted the Court to note the correct date. However, his motion, even viewed most charitably, further confused dates and failed to state the precise relief Easley was seeking from the Court. Easley also noted issues with the prison mail system, the effect of Covid-19 restrictions on the prison, and said, “Plaintiff never provided a pretrial statement as Plaintiff was never provided the order to do so.” Id., p. 3. Easley then chose not to attend a hearing scheduled by the Court on the motions to dismiss even though he received notice. ECF Nos. 62, 67. He had a prescheduled family visit by video. ECF Nos. 64, 67, 69.
On May 10, 2021, the Court adopted the undersigned's report and recommendation to deny the Defendants' prior motions to dismiss based on Easley's failure to prosecute. ECF No. 72. As a consequence for Easley's failure to file a responsive concise statement as required by Local Civil Rule of Court 56(C)(1), the Court ordered that all properly supported material facts stated in Defendant Renberg's concise statement of material facts were deemed admitted pursuant to Local Civil Rule of Court 56(E). The undersigned's report and recommendation warned Easley: “any willful failure to appear for a court-mandated hearing or conference in the future or any further unexcused failure to comply with filing deadlines will result in a recommendation of dismissal of his case.” ECF No. 70, p. 3.
On June 15, 2021, the Corrections Defendants filed a motion for extension of time to move for summary judgment, requesting that the Court require Easley to file his pretrial statement first. ECF No. 78, ¶¶ 14-15. The Court granted the motion, allowing thirty days after the pretrial statement for summary judgment motions, and ordered Easley to file his pretrial statement by July 19, 2021. ECF No. 79. The Order included a copy of the Local Rule explaining the requirements for a pretrial statement. Id. The Court warned, “Plaintiff's failure to file a Pretrial Statement in accordance with this Order will result in a Recommendation that this action be dismissed for failure to prosecute.” Id., (emphasis in original). Despite this warning, Easley has not filed his pretrial statement or sought an extension of time to do so. Having ignored multiple orders to file his pretrial statement over a period of serval months, Easley has demonstrated a long history delays and noncompliance. See Mack, 2019 WL 1302626, at *2 (“Mack has established a history of dilatoriness through his failure to notify the Court of his whereabouts and failure to comply with Court Orders and rules.”). Easley's delays and noncompliance with deadlines strongly favor dismissal.
With respect to the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. While it is difficult to evaluate willfulness on the limited record available, there is nothing on the docket to suggest that Easley is not receiving the Court's orders, nor has he offered any explanation March 5, 2021 for his repeated failures to respond. ECF No. 68. Since filing this lawsuit, Easley has commenced two other civil lawsuits in this Court against DOC Defendants: Civil action 1:20-cv-00156-RAL was filed on July 23, 2020, and civil action 1:21-cv-00063-SPB-RAL was filed on Jan. 26, 2021. ECF No. 64. He filed a document in the latter case on May 14, 2021, obviating concern that he is unable to access this Court. Under such circumstances, the Court must conclude that those failures are intentional, tilting this factor in favor of dismissal.
A court may take judicial notice pursuant to Fed.R.Evid. 201 of documents filed in other court proceedings because they are matters of public record. Liberty Int'l Underwriters Can. v. Scottsdale Ins. Co., 955 F.Supp.2d 317, 325 (D.N.J. 2013).
The fifth factor addresses the effectiveness of sanctions other than dismissal. Poulis, 747 F.2d at 869. Alternative, monetary sanctions are ineffective where the plaintiff is indigent. See, e.g., Brennan v. Clouse, 2012 WL 876228, at *3 (W.D. Pa. Mar. 14, 2012) (“Alternative sanctions, such as monetary penalties, are inappropriate as sanctions with indigent pro se parties.”) (citing Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002)). Moreover, alternative sanctions are unlikely to be effective against a party who refuses to communicate with the Court. Mack, 2019 WL 1302626, at *2 (noting that the court was “incapable of imposing a lesser sanction” on a plaintiff who refused to participate in his own lawsuit). The Court has already tried alternative sanctions. The Court adopted the undersigned's recommendation that all properly supported material facts stated in Defendant Renberg's concise statement of material facts were deemed admitted pursuant to Local Civil Rule of Court 56(E) as a consequence for Easley's failure to file a responsive concise statement as required by Local Civil Rule of Court 56(C)(1). ECF No. 72. Even this did not spur Easley to action, nor did the Court's specific warning it would recommend dismissing the case for failure to prosecute. Thus, this factor weighs heavily in favor of dismissal.
Finally, the Court must consider the potential merit of Easley's claims. A claim is meritorious for this analysis “when the allegations of the pleadings, if established at trial, would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. The Court narrowed Easley's claims when it adopted the undersigned's report and recommendation that the Court grant in part and deny in part the motion to dismiss filed by Defendant Renberg and Defendant Byers (treated as a motion for summary judgment pursuant to Renchenski v. Williams, 622 F.3d 315 (2010)). ECF No. 38. The Court entered judgment in Defendant Byers' favor and terminated Byers from the case. The Court granted the motion as to Easley's claims arising from Renberg's alleged conduct in 2019 due to his failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. But the Court denied the motion on failure to exhaust grounds as to Easley's Eighth Amendment claims against Defendant Renberg based on deliberate indifference to his serious medical need in 2015. Besides Easley's claim against Renberg, Easley also has pending deliberate indifference claims against several DOC officials for allegedly interfering with his mental health treatment and conditions of confinement and claims for interference with his right of access to the courts under the First Amendment. ECF No. 8, pp. 4, 6-8 (Complaint).
Easley's allegations that the Defendants violated prison policies regarding psychiatrist's visits in 2015 do not on their own violate the Constitution because “[t]he simple fact that state law prescribes certain procedures does not mean that the procedures thereby acquire a federal constitutional dimension.” Lee v. Schrader, 2014 WL 2112833, at *4-5 (W.D. Pa. May 20, 2014) (citing United States v. Jiles, 658 F.2d 194, 200 (3d Cir. 1981) (other citations omitted). Easley's Complaint does not appear to support a viable deliberate indifference claim because even though he wanted Renberg or another psychiatrist to see him more often during his hunger strike in 2015, it is clear when taking his Complaint as true that Renberg attended to Easley multiple times, and he managed to speak with other psychologists as well. ECF No. 8, ¶¶ 1-8. See Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases) (“Therefore, where a dispute in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as a constitutional claim under § 1983.”). The rest of his Complaint addressing conduct underlying his claims from 2019 which the Court already dismissed against Renberg for failure to exhaust.
As to the Corrections Defendants, most of the allegations do not establish their personal involvement because his Complaint rarely specifies who he claimed he warned about his risk of suicide. A defendant in a § 1983 action “must have personal involvement in the alleged wrongs to be liable and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” Saisi v. Murray, 822 Fed.Appx. 47, 48 (3d Cir. 2020) (quoting Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations removed). The few instances which implicate a specific Corrections Defendant do not meet the requirements for a deliberate indifference to the risk of suicide or self-harm claim, under which a court will not impose liability unless the plaintiff sets forth facts suggesting that (1) he “had a ‘particular vulnerability to suicide,' (2) the custodial officer or officers knew or should have known of that vulnerability, and (3) those officers ‘acted with reckless indifference' to [his] particular vulnerability.” See Hinton v. Mark, 544 Fed.Appx. 75, 77 (3d Cir. 2013) (quoting Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991)). His allegations of a risk of harm are too general to establish that a prison official both knew of and chose to disregard an “excessive risk to inmate health or safety.” See Beers-Capitol v. Whetyel, 256 F.3d 120, 133 (3d Cir. 2011) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Even negligent acts by the Corrections Defendants are not actionable under the Eighth Amendment because liability requires “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). And Easley's access to courts claim for loss of his legal papers is not meritorious because he has failed to “describe the underlying arguable claim well enough to show that it is ‘more than mere hope,' and it must describe the ‘lost remedy.'” Monroe v. Bear'd, 536 F.3d 198, 205 (3d Cir. 2008) (quoting Christopher v. Harbury, 536 U.S. 403, 415-17 (2002)). Easley's allegations, “if established at trial, ” and the evidence developed to date do not support the meritoriousness of any of his claims. Poulis, 747 F.2d at 868. Accordingly, this factor also weighs in favor of dismissal.
42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Additionally, the Court previously adopted the undersigned's oral report and recommendation denying Easley's motion for a preliminary injunction/temporary restraining order. ECF No. 20. The undersigned found after receiving live testimony and other evidence at a hearing that prison officials and medical personnel have provided Easley appropriate mental health treatment and that his attempts at self-harm were largely motivated by his “desire for secondary gain in order to affect the prison process.” (ECF No. 6, hearing Transcript, at p. 37).
Thus, all six Poulis factors support dismissal of Easley's action. Other courts have dismissed actions for failure to prosecute when the plaintiff failed to file a pretrial statement, the Court issued a show cause order for this error, warned that a failure to respond would result in the dismissal of his case, and the plaintiff still failed to respond. See Shelley v. Sprowls, 143 Fed.Appx. 459 (3d Cir. 2005); Martin v. Fayette, 2021 WL 796063 (W.D. Pa. Mar. 2, 2021); Chen Cong Shu v. United States, 2006 WL 1515658 (W.D. Pa. Feb. 21, 2006), report and recommendation adopted by, 2006 WL 1479624 (W.D. Pa. Mar 14, 2006).
While the Court is mindful of this Circuit's strong policy in favor of deciding cases on the merits, such a resolution is impossible when the plaintiff declines to participate in his own lawsuit, particularly after the Court has given him repeated opportunities to do so and guidance regarding how to do so. Litigants ignore the Court orders at their own peril. In this case, dismissal is supported by each of the Poulis factors and the record.
III. Conclusion
For the reasons set forth above, it is respectfully recommended that this action be dismissed due to Easley's failure to prosecute.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen days. Any party opposing the objections shall have fourteen days to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).