Silverman v. Stevens et al

Filing 17

MEMORANDUM AND ORDER: 1) Pursuant to Rule 41(b) of the FRCP, Pltfscomplaint is DISMISSED for failure to prosecute.2) The Clerk of Court is directed to CLOSE this case.3) Any appeal taken from this order will be deemed frivolous, withoutprobable cause, and not taken in good faith. Signed by Honorable Sylvia H. Rambo on 10/09/12. (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANK SILVERMAN,

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Plaintiff
v.
SGT. STEVENS, et al.,
Defendants

CIVIL NO. 1:CV-12-00959
(Judge Rambo)

MEMORANDUM
I.

Background
On May 22, 2012, Plaintiff Frank Silverman, an inmate formerly

incarcerated at the State Correctional Institution at Rockview (“SCI-Rockview”) in
Bellefonte, Pennsylvania, filed this pro se civil rights action pursuant to the
provisions of 42 U.S.C. § 1983. (Doc. 1.) In his complaint, Plaintiff claims that in
May 2010, three prison officials from SCI-Camp Hill, his former place of
confinement, used excessive force upon him, causing physical injuries, and that an
unnamed medical staff member was subsequently indifferent to his serious medical
needs. (Id.) Along with the complaint, Plaintiff filed a motion for leave to proceed
in forma pauperis. (Doc. 2.) On June 14, 2012, the court granted Plaintiff’s
motion to proceed in forma pauperis and directed service of the complaint on the
defendants named therein. (Doc. 8.)

On July 5, 2012, Plaintiff filed a motion to appoint counsel. (Doc. 9.) In
that motion, Plaintiff stated, “Plaintiff is being transferred to another facility in the
near future which has no law library whatsoever. The facility is the Atlantic
County Justice Facility in New Jersey, 5060 Atlantic Ave., Mays Landing, NJ
08330.” (Id.) (emphasis added). However, since the date of that filing, the court
has not received any notice from Plaintiff indicating a change of address to the
aforementioned Atlantic County Justice Facility or elsewhere. The court denied
Plaintiff’s motion to appoint counsel on July 9, 2012. (Doc. 10.)
On July 24, 2012, waivers of service were returned as to the named
Defendants. (See Doc. 11.) On August 20, 2012, the named Defendants filed a
motion for an extension of time to file an answer, (Doc. 12), which the court
granted by order dated August 21, 2012, (Doc. 13). That order (Doc. 13), mailed
to Plaintiff at SCI-Rockview on August 21, 2012, was returned to the court on
September 4, 2012 as undeliverable and marked “Return to Sender - Unable to
Forward.” (See Doc. 14.)
On September 21, 2012, the named Defendants filed an answer to the
complaint. (Doc. 15.) Defendants served Plaintiff with the answer that same day
at his address at SCI-Rockview indicated on the docket. The answer was returned

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as undeliverable.1 (See Doc. 16 ¶ 3.) Further, on September 26, 2012, through a
phone conversation with the Atlantic County Justice Facility, the court was
informed that Plaintiff was released on September 1, 2012. Finally, Defendants
assert that Plaintiff has not communicated with Defendants’ counsel to provide a
new address by which to contact him. (Id. ¶ 6.)

II.

Discussion
Following the initiation of this action, Plaintiff was provided with a copy of

this court’s Standing Practice Order which provides in relevant part:
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.)
Plaintiff’s failure to inform this court of a change of address constitutes a

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In a status report filed on October 1, 2012, Defendants indicate that their motion for an
extension of time to file an answer (Doc. 12), sent to Plaintiff on August 20, 2012, was returned
to counsel as undeliverable because Plaintiff was transferred to Centre County Prison. (Doc.
16.) Further, Defendants state: “After receiving the returned mail, a legal assistant for
defendants’ counsel contacted Centre County prison and learned that plaintiff Silverman had
been received at that prison on July 8, 2012 and released on July 23, 2012 to the Atlantic
County, New Jersey sheriff. The same legal assistant subsequently contacted the Atlantic
County prison and learned that plaintiff Silverman had been released from custody.” (Id. ¶ 5.)
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failure to prosecute this action and, therefore, this action is subject to dismissal
pursuant to Federal Rule of Civil Procedure 41(b), which states in pertinent part:
“If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.”
Further, the Third Circuit has long held that Rule 41(b) does not prohibit the
sua sponte dismissal of actions against a defendant.
As was said in Link v. Wabash R.R., where the plaintiff argued that
F.R.C.P. 41(b) by negative implication prohibits involuntary dismissal
except on motion by the defendant, no restriction on the district
court’s power should be implied: “The authority of a court to dismiss
sua sponte for lack of prosecution has generally been considered an
‘inherent power,’ governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases.’
Kenney v. California Tanker Co., 381 F.2d 775, 777 (3d Cir. 1967) (quoting Link
v. Wabash R.R., 370 U.S. 626, 630-31 (1962)). Further, in Link, the United States
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. 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) . . . .
Link, 379 U.S. at 629-30.
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In the instant action, it is clear that Plaintiff has failed to comply with the
court’s Standing Practice Order. Plaintiff’s failure to provide the court with his
current address has clearly delayed and prevented the resolution of this matter.
Under these circumstances, it would be a waste of judicial resources to allow this
action to continue.
Since the inability of the court to communicate with Plaintiff is solely the
result of his own actions and prevents the taking of any other sanctions, this court
is satisfied that based on the present circumstances, dismissal for failure to
prosecute is warranted. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863
(3d Cir. 1984). Consequently, pursuant to Federal Rule of Civil Procedure 41(b),
Plaintiff’s complaint will be dismissed for failure to prosecute.
An appropriate order follows.
s/Sylvia H. Rambo
United States District Judge
Dated: October 9, 2012.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANK SILVERMAN,
Plaintiff
v.
SGT. STEVENS, et al.,
Defendants

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CIVIL NO. 1:CV-12-00959
(Judge Rambo)

ORDER
For the reasons set forth in the accompanying memorandum, IT IS
HEREBY ORDERED THAT:
1) Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, Plaintiff’s
complaint is DISMISSED for failure to prosecute.
2) The Clerk of Court is directed to CLOSE this case.
3) Any appeal taken from this order will be deemed frivolous, without
probable cause, and not taken in good faith. See 28 U.S.C. § 1915(a)(3).

s/Sylvia H. Rambo
United States District Judge
Dated: October 9, 2012.