Pavalone v. County of Lackawanna Pennsylvania et al
Filing
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MEMORANDUM AND ORDER granting pltf's motions to proceed w/out full prepymt of costs & fees 2 & 5 , DISMISSING action pursuant to FRCP 41(b), directign Clrk of Ct to CLOSE case, & DEEMING any appeal from this order as frivolous & not in good faith. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 10/31/11. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PAUL JOSEPH PAVALONE ,
Plaintiff
v.
COUNTY OF LACKAWANNA
PENNSYLVANIA, et al.,
Defendants
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CIVIL ACTION NO. 1:11-CV-1449
(Judge Conner)
MEMORANDUM
Paul Joseph Pavalone (“plaintiff ”), an inmate incarcerated at the
Lackawanna County Prison, Scranton, Pennsylvania, at the time he commenced
this action on August 5, 2011, named the following defendants: County of
Lackawanna Pennsylvania; Lackawanna County Domestic Relations; Lackawanna
County Public Defender’s Office; Lackawanna County District Attorney’s Office;
Lackawanna County Prison; Federal Bureau of Investigation; Attorney Petorak;
Attorney Mastri, Detective Justin Leri; Detective Chris Kolcharno; Mary Muscari;
Thomas Baker; Tim Cannon; Carbondale Police Department. (Doc. 1.) Plaintiff
moves to proceed in forma pauperis. (Docs. 2, 5.) For the reasons set forth below,
the action will be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for
failure to follow a court order.
I.
Procedural Background
Preliminary review of the complaint revealed that plaintiff included a whole
host of unrelated claims which include, but are not limited to, conspiracy, unlawful
arrest, poor conditions of confinement, false criminal charges and a coerced guilty
plea, and do not involve an issue of law or fact common to the various entities and
individuals named as defendants. (Doc. 1.) Consequently, by Order dated
October 18, 2011 (Doc. 8), he was directed to file an amended pleading which strictly
adheres to the mandates of Federal Rules of Civil Procedure, Rule 8, General Rules
of Pleading, and Rule 20, Permissive Joinder of Parties.1 Although the deadline for
filing the amended complaint has not yet passed, the October 18, 2011 Order was
returned to the Court on October 25, 2011, as undeliverable in an envelope marked
“Return to Sender Inmate not at this Facility.” (Doc. 9.)
Rule 8(d)(1) states, in pertinent part, that “[e]ach allegation must be simple,
concise and direct.” Rule 20, states, in pertinent part, the following:
1
(a) Persons Who May Join or Be Joined
(2) Defendants. Persons – . . . may be joined in one action as
defendants if:
(A) any right to relief is asserted against them jointly,
severally, or in the alternative, with respect to or arising out
of the same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all defendants
will arise in the action.
FED . R. CIV . P. 20(a).
2
This Court’s Standing Practice Order, which was forwarded to plaintiff on
August 22, 2011, specifically states that “[a] pro se plaintiff has the affirmative
obligation to keep the court informed of his or her current address. If the plaintiff
changes his or her address while this lawsuit is being litigated, the plaintiff shall
immediately inform the court of the change, in writing. If the court is unable to
communicate with the plaintiff because the plaintiff has failed to notify the court of
his or her address, the plaintiff will be deemed to have abandoned the lawsuit.”
(Doc. 4, at 4.)
II.
Discussion
Federal Rule of Civil Procedure 41(b) provides that an action may be
involuntarily dismissed “[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order.” Further, the rule permits sua sponte dismissals by the court.
Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Hewlett v. Davis, 844 F.2d 109,
114 (3d Cir. 1988) (same). In determining whether to exercise its discretion to
dismiss as a sanction for failure to prosecute and failure to comply with court
orders, a district court must balance the six factors set forth in Poulis v. State Farm
Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984): (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. Ware v.
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Rodale Press, Inc., 311 F.3d 218, 221 (3d Cir. 2003); see also Adams v. Trustees of
N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 873-78 (3d Cir.1994)
(applying Poulis factors to dismissal under Rule 41(b)). The court must consider all
six factors. Ware, 322 F.3d at 221-22; United States v. $8,221,877.16 in United States
Currency, 330 F.3d 141, 162 (3d Cir. 2003).
A.
Analysis of the Poulis Factors
1. The extent of the party’s personal responsibility
Pursuant to this Court’s Standing Practice Order, a pro se plaintiff has the
obligation to inform the court of address changes. (Doc. 4) The Court’s October 18,
2011 Order, requiring plaintiff to amend his complaint, was returned as
undeliverable. A review of Vinelink2, a web site that allows a custodial search of
Pennsylvania State inmates, reveals that plaintiff was released from custody by
court order on October 4, 2011. Plaintiff has failed to notify the Court of his new
address and it can therefore only be concluded that he is personally responsible for
failing to comply with the Standing Practice Order.
2.
The prejudice to the adversary
“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
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https://www.vinelink.com/vinelink/siteInfoAction.do?siteId=39000,
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quotations and citations 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. In the matter sub judice, plaintiff’s failure to move the litigation forward has
resulted in no prejudice to defendants as the complaint has not yet been served.
3.
A history of dilatoriness
“Extensive 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, 29 F.3d at 874; see also Ware v.
Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003) (finding that a history of dilatory
conduct existed because the plaintiffs “failed repeatedly” to provide a damages
calculation for the defendant); Emerson, 296 F.3d at 191 (finding that a history of
dilatory conduct existed because the “procedural history of this case reflects
continuous dilatoriness” as demonstrated by the plaintiff's multiple requests for
stays and failure to comply with multiple deadlines). Although the plaintiff failed to
comply with the Standing Practice Order by notifying the Court of his change of
address, it cannot be said that such an isolated event constitutes dilatory conduct.
4.
Was the conduct willful or in bad faith?
Under this factor, the District Court must consider whether the conduct was
“the type of willful or contumacious behavior which was characterized as flagrant
bad faith.” Adams, 29 F.3d at 875 (internal quotation marks and citation omitted).
Generally, “[w]illfulness involves intentional or self-serving behavior.” Id. ; see also
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Emerson, 296 F.3d at 191 (finding bad faith because the conduct went beyond mere
negligence). Plaintiff has not displayed willful conduct or bad faith.
5.
Effectiveness of sanctions other than dismissal
Ordinarily, a District Court must consider the availability of sanctions
alternative to dismissal. Poulis, 747 F.2d at 869. However, where a plaintiff is
proceeding pro se, and moreover, is proceeding in forma pauperis, as is the case
here, it has been found that no alternative sanctions existed because monetary
sanctions, including attorney’s fees, “would not be an effective alternative.”
Emerson, 296 F.3d at 191. In a scenario such as the present one, where the court is
faced with a complete inability to communicate with the individual who brought the
action, the only appropriate sanction is dismissal.
6.
Meritoriousness of the claim
“A claim, or defense, will be deemed meritorious when the allegations of the
pleadings, if established at trial, would support recovery by plaintiff or would
constitute a complete defense.” Poulis, 747 F.2d at 869-70, citing United States v.
$55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984); Feliciano v. Reliant
Tooling Co., 691 F.2d 653, 657 (3d Cir. 1982); Farnese v. Bagnasco, 687 F.2d 761, 764
(3d Cir. 1982). Plaintiff’s scattered and disjointed claims include allegations of
conspiracy, unlawful arrest, poor conditions of confinement, false criminal charges
and a coerced guilty plea. Among the deficiencies contained in plaintiff’s
complaint, and fatal to the progression of the litigation is his failure to allege
personal involvement.
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Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.
The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege
“the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“A defendant in a civil rights action must have personal involvement in the
alleged wrongs. . . . Personal involvement may be shown through allegations of
personal direction or actual knowledge and acquiescence.” Rode v. Dellarciprete,
845 F.2d 1195, 1207-08 (3d Cir. 1988); see also, Rizzo v. Goode, 423 U.S. 362 (1976);
see Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003); Hampton v. Holmesburg Prison
Officials, 546 F.2d 1077 (3d Cir. 1976). Allegations of participation or actual
knowledge and acquiescence, however, must be made with appropriate
particularity. Rode, 845 F.2d at 1207-08. Moreover, liability cannot be predicated
solely on the operation of respondeat superior. Rizzo v. Goode, 423 U.S. 362 (1976);
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Rode, 845 F.2d at 1207. To maintain a claim for supervisory liability, plaintiff “must
show: 1) that the supervising official personally participated in the activity; 2) that
the supervising official directed others to violate a person’s rights; or 3) that the
supervising official had knowledge of and acquiesced in a subordinate’s violations.”
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997); Baker v. Monroe
Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
Plaintiff fails to identify personal involvement of any of the named
defendants in the deprivation of a constitutional right. Federal notice and pleading
rules require the complaint to provide “the defendant notice of what the . . . claim is
and the grounds upon which it rests.” Phillips v. County of Allegheny, 515 F.3d 224,
232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). The plaintiff must present facts that, if true,
demonstrate a plausible right to relief. See FED . R. CIV . P. 8(a) (stating that the
complaint should include “a short and plain statement of the claim showing that the
pleader is entitled to relief”); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949
(2009) (explaining that Rule 8 requires more than “an unadorned, the-defendant
unlawfully-harmed-me accusation”); Twombly, 550 U.S. at 555 (requiring plaintiffs
to allege facts sufficient to “raise a right to relief above the speculative level”).
Under this liberal pleading standard, courts should generally grant plaintiffs leave
to amend their claims before dismissing a complaint that is merely deficient. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver,
213 F.3d 113, 116-17 (3d Cir. 2000). Plaintiff was afforded the opportunity to amend
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to cure the deficiencies and allege personal involvement, but the order was
returned as undeliverable. Therefore, any further attempts to allow him to amend
would be futile.
B.
Balancing of the Poulis Factors
In balancing the Poulis factors, no single factor is dispositive, Ware, 322 F.3d
at 222, and not all of the factors need be satisfied in order to dismiss a complaint.
Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). It is clear that, many of the
crucial factors weigh in favor of dismissal of the action for plaintiff’s failure to
comply with the Standing Practice Order and keep the Court apprised of his
address.
III.
Conclusion
Based on the foregoing, the complaint will be dismissed pursuant to Federal
Rule of Civil Procedure 41(b).
An appropriate Order will issue.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Date:
October 31, 2011
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PAUL JOSEPH PAVALONE ,
Plaintiff
v.
COUNTY OF LACKAWANNA
PENNSYLVANIA, et al.,
Defendants
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CIVIL ACTION NO. 1:11-CV-1449
(Judge Conner)
ORDER
AND NOW, this 31st day of October, 2011, in accordance with the foregoing
memorandum, it is hereby ORDERED that:
1.
Plaintiff’s motions to proceed without full prepayment of costs and fees
(Docs. 2, 5) are GRANTED.
2.
Plaintiff’s action is DISMISSED pursuant to Federal Rule of Civil
Procedure 41(b).
3.
The Clerk of Court is directed to CLOSE this case.
4.
Any appeal from this order is DEEMED frivolous and not in good faith.
See 28 U.S.C. § 1915(a)(3).
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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