Thompson v. Cumberland County Prison et al

Filing 30

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that 1)Defendants motions to dismiss the amended complaint pursuant to Fed. R. Civ.P. 41(b) (Doc. Nos. 27, 28) are granted and this action is dismissed withprejudice. 2)The motions to dismiss the amended co mplaint pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants Wilson and Robertson (Doc. Nos. 15, 19) are dismissed as moot. 3) The Clerk of Court is directed to CLOSE this case. 4)Any appeal from this order is deemed frivolous and not taken in good faith. 15 19 27 28 Signed by Chief Judge Yvette Kane on March 1, 2013. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HENRY THOMPSON,
Plaintiff,
v.
CORPORAL RONALD E. WILSON,
et al.,
Defendants

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CIVIL NO. 1:CV-12-0519
(Chief Judge Kane)

MEMORANDUM
Plaintiff Henry Thompson, at the time an inmate at the Cumberland County Prison
(“CCP”) , Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983 against CCP
employees Corporal Ronald E. Wilson and Nurse Tori Robertson. The matter proceeds on an
amended complaint filed on April 23, 2012. (Doc. No. 11.) In the amended complaint Plaintiff
alleges that on April 3, 2011, Defendants denied him appropriate medical treatment from a
physician outside the prison for an injury he received that evening. For the reasons that follow,
the amended complaint will be dismissed pursuant to Federal Rule of Civil Procedure 41(b).
I.

Procedural Background
On May 7, 2012, the Court directed service of the amended complaint on Defendants.

(Doc. No. 12.) On July 11, 2012, Defendant Wilson filed a motion to dismiss and a brief in
support of the motion. (Doc. Nos. 15, 16.) Because Plaintiff failed to file any opposition to the
motion, the Court issued an order on September 27, 2012, directing him to do so, and warned
him that the failure to comply would result in the granting of the motion or the dismissal of his
case for failure to prosecute. Link v. Wabash RR. Co., 370 U.S. 626, 630-31 (1962)(interpreting
Federal Rule of Civil Procedure 41(b) as permitting sua sponte dismissal by the court); Poulis v.

State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). (Doc. No. 18.) This order was
mailed to Plaintiff at MCC-New York, a facility where he was transferred from CCP. On
September 28, 2012, Defendant Robertson filed a motion to dismiss the complaint and a
supporting brief. (Doc. Nos. 19, 20.)
On October 24, 2012, the Court’s order of September 27, 2012 that had been mailed to
Plaintiff at the MCC-New York facility, was returned to the Court marked “Undeliverable.”
(Doc. No. 21.) Specifically, the envelope provided as follows: “RTS-No longer at this facility.”
Thereafter, Defendant Wilson filed a motion to dismiss Plaintiff’s complaint pursuant to Federal
Rules of Civil Procedure 37 and 41(b) for failure to obey a court order and failure to prosecute.
A brief in support of the motion was also filed.
On December 18, 2012, the Court issued another warning order to Plaintiff directing him
to file his opposition briefs to the outstanding motions to dismiss filed by Defendants pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Doc. 25.) In this order, the Clerk of Court was also
directed to change Plaintiff’s address on the docket from MCC-New York to the following street
address: 300 Harvest Lane, Shippensburg, Pennsylvania, 17257, and Defendant Wilson’s
outstanding motion to dismiss on the basis of failure to comply with a court order and for failure
to prosecute was dismissed without prejudice. In an effort to provide Plaintiff one last
opportunity to oppose the motions to dismiss, the Court directed the address change on the
docket based upon an alternative address he provided at the time he advised the Court of his
transfer to MCC-New York. In said correspondence, Plaintiff had also referenced his home
address as the Harvest Lane address. As such, even though Plaintiff failed to advise the Court of
his transfer or release from MCC-New York, he had previously mentioned a home address. The

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Court thus made another attempt to send him the order directing that he file his opposition briefs
or risk the motions being granted or the case being dismissed for failure to prosecute.
Despite the remailing of the Court’s order to Plaintiff at the Harvest Lane address on
December 18, 2012, he has still failed to file his opposition to the motions to dismiss or contact
the Court in any way. Although the order mailed to the Harvest Lane address was not returned
to the Court, there is still no way of determining whether Plaintiff actually resides there or ever
received the mailing.
On February 6, 2013, Defendant Wilson filed a motion to dismiss this action pursuant to
Federal Rules of Civil Procedure 37 and 41(b). (Doc. No. 27.) On February 20, 2013,
Defendant Robertson filed a motion to dismiss the case for lack of prosecution pursuant to Rule
41(b). (Doc. No. 28.) A brief in support of the motion has also been filed. (Doc. No. 29.) Both
of these motions were served upon Plaintiff at the Harvest Lane address. To date, Plaintiff has
failed to oppose Defendants’ original motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
(Doc. Nos. 15, 19), or respond in any way to the motions to dismiss pursuant to Fed. R. Civ. P.
41(b) (Doc. Nos. 27, 28).
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, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (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

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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. Rodale Press, Inc., 322 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
A pro se plaintiff is responsible for his failure to comply with a court’s orders. Emerson
v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002). When Plaintiff first filed this action, a Standing
Practice Order was issued advising him of his briefing and litigation responsibilities. (Doc. No.
5.) Included among these responsibilities is the obligation to notify the Court of any change of
address. He was further advised that if the Court is unable to communicate with him due to the
failure to provide a current address, he will be deemed to have abandoned his lawsuit. (Id. at 4.)
In April of 2012, Plaintiff informed the Court that he was transferred from the Cumberland
County Prison to the MCC-New York, and that he would be there until his return to
Pennsylvania (Doc. No. 9). He also provided a home address on Harvest Lane in Williamsport,
Pennsylvania. This is the last contact the Court has ever received from Plaintiff. He never

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notified the Court when he was released from the MCC-New York facility. When the Court sent
mail to Plaintiff there and it was returned, the only other address option the Court had was to
forward any mailings to the Harvest Lane address. Despite this effort on the Court’s part, even
without any contact from Plaintiff as to his current whereabouts, he has still failed to respond to
any of the Court’s orders. Based upon these facts, the Court can only conclude that Plaintiff is
personally responsible for failing to comply with the Standing Practice Order by keeping the
Court informed of his current whereabouts.
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 at 873-74 (internal 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 provide/verify his current address can clearly
be said to result in some prejudice to Defendants. Defendants have attempted to serve their
motions to dismiss upon Plaintiff over the span of the past six (6) months. In light of the
procedural status of this case, Defendants are prejudiced in that he has no means of moving this
case toward resolution based upon Plaintiff’s failure to cooperate.
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.

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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 plaintiff’s multiple requests for stays and failure to
comply with multiple deadlines). In reviewing the docket in this action, the Court cannot say
that Plaintiff demonstrates “a history” of dilatory conduct other than with respect to failing to
notify the Court of his whereabouts following his release from the MCC-New York facility and
failing to respond to the Court’s orders regarding the filing of opposition to the motions to
dismiss. See Briscoe v. Klaus, 538 F.3d 252, 261 (3d Cir. 2008).
4. Was the conduct willful or in bad faith?
Under this factor, the 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 Emerson, 296 F.3d at 191 (finding bad faith
because the conduct went beyond mere negligence). In light of the fact that it appears that
Plaintiff has been released from prison, and since that time has failed to provide the Court and
Defendants with his current whereabouts or contact the Court in over six (6) months, it can only
be concluded that he demonstrates a willful disregard for procedural rules and court directives.
5. Effectiveness of sanctions other than dismissal
Ordinarily, the 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

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exist because monetary sanctions, including attorney’s fees, “would not be an effective
alternative.” Emerson, 296 F.3d at 191. Under the instant circumstances where the Court is
faced with the complete lack of cooperation on the part of the individual who brought the action,
the only appropriate sanction is dismissal. Otherwise the case would linger indefinitely on the
Court’s docket.
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).
In this case, Defendant Wilson seeks dismissal of the complaint on several grounds, one
of which is the failure of Plaintiff to exhaust his available administrative remedies. Pursuant to
42 U.S.C. § 1997e(a), no action shall be brought with respect to prison conditions under section
1983 or any other Federal law by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted. A prisoner must
exhaust administrative remedies as to any claim that arises in the prison setting, regardless of any
limitations on the kind of relief that may be gained through the grievance process. See Porter v.
Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). “[I]t is
beyond the power ... of any ... [court] to excuse compliance with the exhaustion requirement,
whether on the ground of futility, inadequacy or any other basis.” Nyhuis v. Reno, 204 F.3d 65,
73 (3d Cir. 2000)(quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95

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(S.D.N.Y. 1998). Proper exhaustion is also required prior to commencing any suit in federal
court. Woodford v. Ngo, 548 U.S. 81, 92 , 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). “Proper
exhaustion demands compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90-91. Failure to substantially comply with procedural
requirements of the applicable prison’s grievance system will result in a procedural default of the
claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004). In the instant case, Plaintiff
concedes that there was a grievance procedure available to him and that he failed to exhaust his
administrative remedies. As such, it is clear that his failure to exhaust operates as a bar to his
lawsuit.
Defendant Robertson seeks the dismissal of the claims against her based upon the failure
of Plaintiff to state a viable Eighth Amendment medical claim. The Eighth Amendment
“requires prison officials to provide basic medical treatment to those whom it has incarcerated.”
Rouse v. Plantier, 182 F.3d 192,197 (3d Cir.1999)(citing Estelle v. Gamble, 429 U.S. 97 (1976)).
In order to establish a violation based on the Eighth Amendment, “evidence must show (i) a
serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate
indifference to that need.” See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Natale v.
Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
A serious medical need is “one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would easily recognize the necessity for a
doctor’s attention.” Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d
Cir. 1987). The “deliberate indifference” standard is a stringent standard of fault requiring proof

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that a defendant disregarded a known or obvious consequence of his action. Board of County
Commissioners of Bryan County v. Brown, 520 U.S. 397, 410 (1997). The defendant must be
both aware of facts from which the inference could be drawn that a substantial harm exists, and
he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The test for
whether a prison official was deliberately indifferent is whether that defendant “acted or failed to
act despite his knowledge of a substantial risk of serious harm.” Id. at 841. Only egregious acts
or omissions can violate this standard. See White v. Napoleon, 897 F.2d 103, 108-10 9 (3d Cir.
1990).
A complaint that a physician or a medical department “has been negligent in diagnosing
or treating a medical condition does not state a valid claim of medical mistreatment under the
Eighth Amendment . . . .” Estelle, 429 U.S. at 106. “Allegations of medical malpractice are not
sufficient to establish a Constitutional violation.” Spruill, 372 F.3d at 235. An inmate’s
disagreement with medical treatment also does not rise to the level of “deliberate indifference.”
See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); Boring v. Kozakiewicz, 833 F.2d 468,
473 (3d Cir. 1987).
In accepting as true the factual allegations set forth by Plaintiff, it appears that he would
have preferred to receive different treatment than what he was provided by the prison medical
department for his injuries, and believes that more appropriate treatment could have been
provided by a physician outside of the prison. (Doc. No. 11, Am. Compl. at 2-3.) He alleges
that he was denied access to a physician capable of evaluating the need for treatment.
Based upon the foregoing, Defendant Robertson moves to dismiss the allegations against
her in that Plaintiff does not dispute that he received care from the prison medical department for

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the injuries he sustained. Rather, he disagrees with the care he received and preferred to receive
treatment from an outside physician. Accepting the truth of Plaintiff’s allegations, it is clear that
he fails to state a viable Eighth Amendment claim. He simply takes issue with the type of
treatment received, and does not contend that he did not receive treatment. Dissatisfaction with
the treatment received does not state an Eighth Amendment deliberate indifference claim.
Further, even if he received a negligent misdiagnosis or improper care, he alleges nothing more
than a claim for negligence which does not state a § 1983 claim. As such, it appears that
Plaintiff also would not be successful with respect to the claims set forth in the amended
complaint against Defendant Robertson.
B.

Balancing of Poulis Factors

In balancing the Poulis factors, the Third Circuit has explained that “no single Poulis
factor is dispositive,” and “not all of the Poulis factors need be satisfied in order to dismiss a
complaint.” Ware, 322 F.3d at 222; Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).
There is no “magic formula” to determine how the Poulis factors should be balanced, and the
determination is within the district court’s discretion. Briscoe v. Klaus, 538 F.3d 252, 263 (3d
Cir. 2008). In this case, most of the Poulis factors support dismissal. Plaintiff’s failure to keep
the Court informed of his current whereabouts, to respond to Defendants’ motions, and to
comply with Court orders warrants dismissal pursuant to Federal rule of Civil Procedure 41(b).
An appropriate order follows.

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UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

HENRY THOMPSON,
Plaintiff

: CIVIL NO. 3:CV-12-0519
:
: (Chief Judge Kane)
v.
:
:
CORPORAL RONALD E. WILSON, et al., :
Defendants
:
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ORDER
AND NOW, THIS 1st DAY OF MARCH, 2013, for the reasons set forth in the
accompanying Memorandum, IT IS HEREBY ORDERED AS FOLLOWS:
1.

Defendants’ motions to dismiss the amended complaint pursuant to Fed. R. Civ.
P. 41(b) (Doc. Nos. 27, 28) are granted and this action is dismissed with
prejudice.

2.

The motions to dismiss the amended complaint pursuant to Fed. R. Civ. P.
12(b)(6) filed by Defendants Wilson and Robertson (Doc. Nos. 15, 19) are
dismissed as moot.

3.

The Clerk of Court is directed to close this case.

4.

Any appeal from this order is deemed frivolous and not taken in good faith. See
28 U.S.C. § 1915(a)(3).

S/ Yvette Kane
YVETTE KANE, Chief Judge
Middle District of Pennsylvania