Binkley v. Rendell et al

Filing 67

MEMORANDUM AND ORDER: 1) The unopposed motion to dismiss 56 filed on behalf of Dft Keefe Group, Inc. is GRANTED.2) The amended complaint (Doc. 52) is DISMISSED with prejudice as toDft Keefe Group, Inc. pursuant to FRCP 41(b) for failure to prosecut e and failure to comply with a court order.3) The Clerk of Court is directed to terminate Dft Keefe Group, Inc. as aparty in this action.4) Any appeal from this order will be deemed frivolous, without probable cause,and not taken in good faith.Signed by Honorable Sylvia H. Rambo on 06/28/12 (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TERRY BINKLEY,
Plaintiff
v.
GOVERNOR EDWARD RENDELL,
et al.,
Defendants

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CIVIL NO. 1:CV-10-01245
(Judge Rambo)

MEMORANDUM
I.

Background
Plaintiff Terry Binkley, an inmate currently incarcerated at the State

Correctional Institution in Dallas, Pennsylvania (“SCI-Dallas”), commenced this civil
rights action with a complaint filed on June 14, 2010 (Doc. 1), as amended on April 2,
2012 (Doc. 52), pursuant to the provisions of 42 U.S.C. § 1983. In his amended
complaint, Plaintiff makes several allegations about the conditions at SCI-Dallas.
By order dated April 4, 2012, the court directed service of the amended
complaint on Defendant Keefe Group, Inc. (Doc. 53.) On May 2, 2012, Defendant
Keefe Group, Inc. filed a motion to dismiss the amended complaint, (Doc. 56),
followed by a supporting brief on May 16, 2012 (Doc. 61). Pursuant to M.D. Pa.

Local Rule 7.6,1 Plaintiff had fourteen (14) days from the service of Defendant Keefe
Group, Inc.’s motion and brief to file a brief in opposition to the motion. Within that
time period, Plaintiff failed to file any opposition or seek an extension of time in
which to do so. As a result, by order dated June 7, 2012, the court directed Plaintiff to
file a brief in opposition to the motion to dismiss on or before June 21, 2012. (Doc.
66.) The order also forewarned Plaintiff that if he failed to oppose the motion within
that time period allotted by the court, the court would grant the motion to dismiss
without a merits analysis. See M.D. Pa. Local Rule 7.6; Stackhouse v. Mazurkiewicz,
951 F.2d 29, 30 (3d Cir. 1991).
To date, Plaintiff has failed to file any opposition. Although his brief in
opposition to the pending motion to dismiss is now overdue, he has neither made the
appropriate filing nor requested an extension of time in which to do so. Therefore, for
the reasons set forth below, Defendant Keefe Group, Inc.’s motion to dismiss will be
deemed unopposed and granted without a merits analysis and Plaintiff’s amended
complaint will be dismissed with prejudice as to Defendant Keefe Group, Inc. for

Local Rule 7.6 provides that a party opposing a motion must file a brief in opposition
to the motion within fourteen (14) days, and that if the opposition is not filed within the required
time, he or she will be deemed not to oppose the moving party’s motion.
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failure to prosecute and failure to comply with a court order pursuant to Federal Rule
of Civil Procedure 41(b).

II.

Discussion
Generally, a dispositive motion may not be granted merely because it is

unopposed, because Local Rules of Court must be “construed and applied in a manner
consistent with the Federal Rules of Civil Procedure.” Anchorage Assoc. v. Virgin
Islands Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990) (the disposition of an
unopposed motion ordinarily requires a merits analysis). However, when a plaintiff
fails to prosecute or comply with a court order, the court may dismiss the action
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Link v. Wabash R.R.
Co., 370 U.S. 626, 529 (1962). In Link, the Supreme Court stated:
The authority of a federal trial court to dismiss a plaintiff’s action with
prejudice because of his failure to prosecute cannot seriously be doubted.
[footnote omitted] The power to invoke this sanction is necessary in order
to prevent undue delays in disposition of pending cases and to avoid
congestion in the calendars of the District Courts. The power is of
ancient origin, having its roots in judgments of nonsuit and non
prosequitur entered at common law . . . . It has been expressly
recognized in Federal Rule of Civil Procedure 41(b) . . . .
Id. at 629-30.

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The Third Circuit Court of Appeals held in Stackhouse that a district court
should not dismiss a civil rights complaint brought by a former prisoner for failure to
comply with a local rule requiring a response to a dispositive motion without
examining the merits of the complaint. Stackhouse, 951 F.2d at 30. However, in
reaching this holding, the Court of Appeals did not vitiate the Supreme Court’s
decision in Link, Rule 41(b) of the Federal Rules of Civil Procedure, or the inherent
power of the district court to impose the sanction of dismissal for failing to comply
with a court order. Instead, the Court of Appeals specifically stated:
In reaching our result, we do not suggest that the district court may never
rely on the local rule to treat a motion to dismiss as unopposed and
subject to dismissal without a merits analysis. There may be some cases
where failure of a party to oppose a motion will indicate that the motion
is in fact not opposed, particularly if the party is represented by an
attorney and in that situation the rule may be appropriately invoked. 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.
Stackhouse, 951 F.2d at 30 (emphasis added). Further, in Poulis v. State Farm Fire
and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Court of Appeals identified six
factors that are appropriate to consider before dismissing a case for the plaintiff’s late
filing of a pretrial statement: (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
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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. However, as stated by the Court of Appeals
in a later case,
Poulis did not provide a magic formula whereby the decision to dismiss
or not to dismiss a plaintiff’s complaint becomes a mechanical
calculation easily reviewed by this Court. As we have already
recognized, not all of the Poulis factors need be satisfied in order to
dismiss a complaint. Instead, the decision must be made in the context of
the district court’s extended contact with the litigant. Ultimately, the
decision to dismiss constitutes an exercise of the district court judge’s
discretion and must be given great deference by this Court - a court
which has had no direct contact with the litigants and whose orders,
calendar, docket and authority have not been violated or disrupted.
Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (internal citations omitted).
In the instant case, Plaintiff was advised of the requirements of Local Rule 7.6
in the Standing Practice Order issued in this case on June 15, 2010. (Doc. 5.) Further,
he specifically was directed to comply with Local Rule 7.6 in the court’s June 7, 2012
order directing him to file his opposition brief, and was warned of the consequences of
failing to timely file his opposition in the latter order. The court finds that Plaintiff’s
dilatoriness outweighs any of the other considerations set forth in Poulis.
Accordingly, the court will deem the pending motion to dismiss unopposed and grant
the motion and dismiss the amended complaint as to Defendant Keefe Group, Inc.
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pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute
and for failure to comply with a court order.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: June 28, 2012.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TERRY BINKLEY,
Plaintiff
v.
GOVERNOR EDWARD RENDELL,
et al.,
Defendants

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CIVIL NO. 1:CV-10-01245
(Judge Rambo)

ORDER
In accordance with the accompanying memorandum, IT IS HEREBY
ORDERED THAT:
1) The unopposed motion to dismiss (Doc. 56) filed on behalf of Defendant
Keefe Group, Inc. is GRANTED.
2) The amended complaint (Doc. 52) is DISMISSED with prejudice as to
Defendant Keefe Group, Inc. pursuant to Federal Rule of Civil Procedure 41(b) for
failure to prosecute and failure to comply with a court order.
3) The Clerk of Court is directed to terminate Defendant Keefe Group, Inc. as a
party in this action.

4) Any appeal from this order will be deemed frivolous, without probable cause,
and not taken in good faith.
s/Sylvia H. Rambo
United States District Judge
Dated: June 28, 2012.