Daley v. Pigos et al

Filing 62

MEMORANDUM AND ORDER: 1) The unopposed motion to dismiss or, in the alternative, for summary judgment 45 ) filed by Dfts Pigos, Watts, Maldonado, Young, Lappin, and Wyant is GRANTED.2) The unopposed motion to dismiss and/or motion for summary judgme nt 44 filed by Dft Bacon is GRANTED.3) Pltfs amended complaint 35 is DISMISSED pursuant to FRCP 41(b) for failure to prosecute and for failure to comply with a court order.4) Pltfs second motion for leave to amend his complaint 50 is DEEMED MOOT.5) The Clerk of Court is directed to CLOSE this case.6) Any appeal from this order will be deemed frivolous, without probablecause, and not taken in good faith. Signed by Honorable Sylvia H. Rambo on 02/05/13 (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAMEON DALEY,
Plaintiff
v.
KEVIN PIGOS, et al.,
Defendants

:
:
:
:
:
:
:
:
:

CIVIL NO. 1:CV-11-1713
(Judge Rambo)

MEMORANDUM
Plaintiff Dameon Daley, an inmate presently confined at the United States
Penitentiary at Allenwood (“USP-Allenwood”) in White Deer, Pennsylvania,1 filed
this Bivens-type action on September 14, 2011, as amended March 7, 2012, against
several officials from the Federal Bureau of Prisons (“BOP”).2 (Doc. 35.) In his
amended complaint, Daley alleges that Defendants have denied him appropriate
dental treatment. Daley seeks monetary and declaratory relief.
Both sets of Defendants have filed motions to dismiss or, in the alternative,
for summary judgment. (Docs. 44 & 45.) For the reasons set forth below, the
motions will be deemed unopposed and granted without a merits analysis; Daley’s
amended complaint will be dismissed with prejudice for failure to prosecute and

At the time he filed his original complaint, Daley was incarcerated at the United States
Penitentiary in Lewisburg, Pennsylvania (“USP-Lewisburg”).
1

Named as Defendants are Kevin Pigos, Harrell Watts, G. Maldonado, Jr., J.P. Young,
Harley Lappin, Ms. L Wyant, (“BOP Defendants”), and Richard E. Bacon, D.D.S.
2

for failure to comply with a court order pursuant to Federal Rule of Civil Procedure
41(b); and, the Clerk of Court will be directed to close the case.

I.

Background
By order dated November 2, 2011, the court directed service of Daley’s

original complaint. (Doc. 6.) On January 13, 2012, BOP Defendants filed a
motion to dismiss and for summary judgment. (Doc. 18.) Defendant Bacon joined
in this motion by motion dated February 16, 2012. (Doc. 23.) However, on
February 21, 2012, Daley sought leave to amend his complaint with additional
allegations and newly-named BOP Defendants. (Doc. 26.) On March 7, 2012, the
court granted Daley’s motion, accepted the proposed amended complaint for filing,
and deemed moot the Defendants’ motions to dismiss and for summary judgment.
(Doc. 34.)
Thereafter, on May 10, 2012, Defendant Bacon filed a motion to dismiss the
amended complaint and/or for summary judgment. (Doc. 44.) BOP Defendants
filed a motion to dismiss or, in the alternative, for summary judgment on May 14,
2012. (Doc. 45.)
On June 7, 2012, Daley filed a second motion for leave to amend his
complaint. (Doc. 50.) By order dated August 16, 2012, the court deferred the
2

motion for leave to amend pending disposition of the motions to dismiss or, in the
alternative, for summary judgment. (Doc. 55.) That order also directed Daley to
file one all-inclusive brief in opposition to the pending motions to dismiss or, in the
alternative, for summary judgment, on or before August 30, 2012. (Id.) The court
warned Daley that failure to oppose the outstanding motions would result in the
motions being deemed unopposed and the motions could be granted without a
merits analysis. (Id.)
On August 24, 2012, Daley filed a motion for appointment of counsel.
(Doc. 56.) The court denied that motion on August 30, 2012. (Doc. 57.)
On September 13, 2012, Daley filed a notice of change of address with the
court indicating that he would be in transit from USP-Lewisburg beginning on
September 11, 2012, and arriving at USP-Allenwood on September 18, 2012.3
(Doc. 59.) Daley has not communicated with the court in this matter since
September 13, 2012. Further, nearly five months have passed since Daley’s
opposition to the two motions to dismiss or, in the alternative, for summary
judgment, was due, and he has neither filed his opposition nor requested a further
extension of time in which to do so.

The BOP’s inmate locator confirms that Plaintiff is currently located at USPAllenwood. See http://www.bop.gov.
3

3

II.

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

unopposed. 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, 629 (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 the 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.
The Third Circuit Court of Appeals held in Stackhouse v. Mazurkiewicz, 951
F.2d 29, 30 (3d Cir. 1991), 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. 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
4

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); see also Mindek v. Rigatti, 964 F.2d
1369, 1373 (3d Cir. 1992) (“Poulis did not provide a magic formula whereby the
decision to dismiss or not to dismiss a plaintiff’s complaint becomes a mechanical
calculation . . . . [N]ot all of the Poulis factors4 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 [the Court of Appeals].”).

The Court of Appeals in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d
Cir. 1984) identified six factors that are appropriate to consider before dismissing a case for the
plaintiff’s late filing of a pretrial statement. The six factors are: (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.
4

5

In the instant case, Daley was advised of the requirements of Local Rule 7.65
in the Standing Practice Order issued in this case on September 14, 2011. (Doc. 4.)
Further, he specifically was directed to comply with Local Rule 7.6 in the court’s
August 16, 2012 order directing him to file an all-inclusive brief in opposition, and
was warned of the consequences of failing to timely file his opposition. (Doc. 55.)
Moreover, the court takes judicial notice of the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 filed by Daley on December 3, 2012 in this court,
docketed under a separate case number. See Daley v. Zickefoose, Civ. No. 1:12CV-02405 (M.D. Pa.). In that case, after the court directed service of the petition
on Respondent, (Id., Doc. 4), and Respondent sought an extension of time to
answer the petition, (Id., Doc. 7), Daley filed a brief in opposition to that motion
for an extension on January 3, 2013, (Id., Doc. 9). Both the habeas petition and
Daley’s brief in opposition to the motion for an extension of time in Daley v.
Zickefoose, No. 12-2405, were filed after the due date for his brief in opposition in
the captioned case. As such, Daley clearly has the ability file documents and
communicate with this court.
Nearly four months have passed since Daley’s opposition to the two motions

Middle District 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.
5

6

to dismiss or, in the alternative, for summary judgment, was due, and Daley has not
filed any brief in opposition or sought an extension of time in which to do so. As a
result, the court concludes that Daley’s dilatoriness outweighs any of the other
considerations set forth in Poulis. See supra note 4, at 5. Accordingly, the court
will deem the pending motions to dismiss or, in the alternative, for summary
judgment, to be unopposed and grant the motions; dismiss the amended complaint
in this action 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; deem moot
Daley’s second motion for leave to amend his complaint; and, direct that this case
be closed.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: February 5, 2013.

7

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAMEON DALEY,

:
:
:
:
:
:
:
:
:

Plaintiff
v.
KEVIN PIGOS, et al.,
Defendants

CIVIL NO. 1:CV-11-1713
(Judge Rambo)

ORDER
In accordance with the accompanying memorandum, IT IS HEREBY
ORDERED THAT:
1) The unopposed motion to dismiss or, in the alternative, for summary
judgment (Doc. 45) filed by Defendants Pigos, Watts, Maldonado, Young, Lappin,
and Wyant is GRANTED.
2) The unopposed motion to dismiss and/or motion for summary judgment
(Doc. 44) filed by Defendant Bacon is GRANTED.
3) Plaintiff’s amended complaint (Doc. 35) is DISMISSED pursuant to
Federal Rule of Civil Procedure 41(b) for failure to prosecute and for failure to
comply with a court order.
4) Plaintiff’s second motion for leave to amend his complaint (Doc. 50) is

1

DEEMED MOOT.
5) The Clerk of Court is directed to CLOSE this case.
6) 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: February 5, 2013.

2