Miller v. Pennsylvania Dept. of Labor & Industry et al

Filing 34

MEMORANDUM re Notice of Removal 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 3/29/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:
:
:
Plaintiff
:
:
v.
:
PENNSYLVANIA DEPARTMENT :
:
OF LABOR & INDUSTRY,
FRANKLIN COUNTY AREA TAX :
BUREAU, and CHAMBERSBURG :
:
SOCIAL SECURITY
:
ADMINISTRATION,
:
:
Defendants
JERMAINE TERRELL MILLER,

Civil No. 1:15-CV-1662

Judge Sylvia H. Rambo

MEMORANDUM
Defendants have each moved to dismiss Plaintiff’s complaint for failure
to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 4, 7 &
11.) Because Plaintiff has neither substantively responded to the motions nor
provided the court with an adequate explanation for his dilatoriness, the court will
dismiss Plaintiff’s complaint sua sponte for failure to prosecute pursuant to Federal
Rule of Civil Procedure 41(b).
I.

Background
Jermaine Terrell Miller (“Plaintiff”), acting pro se, initiated this action by

filing a complaint in the Dauphin County Court of Common Pleas on July 24,
2015. (Doc. 1, pp. 6-8.) In his complaint, Plaintiff alleged that the Pennsylvania
Department of Labor & Industry, the Franklin County Area Tax Bureau, and the
Chambersburg Social Security Administration (collectively, “Defendants”)

“play[ed] a conspiring role in the theft and subsequent continuous illegal use of
[his] Social Security Number for employment, home utilities and other financial
functionings within the Commonwealth.” (Id. at p. 6.) Plaintiff further alleged that
Defendants “willfully and knowingly provided technical aid and illegal sheltering”
to individuals and other organizations at the heart of the identity theft conspiracy.
(Id. at p.7.) Plaintiff concluded that “there is no feasible way . . . the three
defendants did not absolutely outright know that they were participating in an
illegal act,” and that the evidence would show “that this identity theft conspiracy
was at such a blatant recognizable degree that it’s substantially convincing that
their respective agencies did actually ignore and/or did actually conceal the prima
facie evidence of wrongdoing.” (Id.) Plaintiff seeks the following as relief: $250
million up front and annually from each defendant (id. at ¶ 1); unlimited and
unrestricted powers, authority, and resources from the Commonwealth of
Pennsylvania (id. at ¶ 2); the criminal prosecution of the responsible employees
from each agency (id. at ¶ 3); and to have the responsible employees of each
agency fired and deemed ineligible for rehire by any government agency or
company (id. at ¶ 4).
On August 27, 2015, the Social Security Administration removed this case
to the United States District Court for the Middle District of Pennsylvania. (Id. at
pp. 1-3.) The Social Security Administration then filed a motion to dismiss the
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complaint on September 3, 2015 (Doc. 4), followed by a timely brief in support on
September 10, 2015 (Doc. 5). The Department of Labor and Industry, through the
Office of the Attorney General, likewise filed a motion to dismiss on September
17, 2015 (Doc. 7) and a brief in support on September 23, 2015 (Doc. 8).
Thereafter, the Tax Bureau filed a motion to dismiss on September 29, 2015 (Doc.
11) and a brief in support on October 29, 2015 (Doc. 24). Each motion moved to
dismiss the complaint pursuant to Federal Rule of Procedure 12(b)(6).
On September 24, 2015, Plaintiff filed a motion seeking a four week
extension of time to respond to the Social Security Administration’s motion to
dismiss, noting that “[t]his inconvenience is due in whole to [his] being transferred
. . . to a different State Correctional Facility on September 15, 2015.” (Doc. 9.) By
order dated September 28, 2015, the court granted Plaintiff’s motion, ordering him
to file a brief in opposition to the Social Security Administration’s motion no later
than October 23, 2015. (Doc. 10.) No such request for an extension of time was
filed regarding the remaining motions to dismiss.
On October 2, 2015, Plaintiff filed a motion for appointment of counsel
(Doc. 13) and brief in support (Doc. 14). In his motion, Plaintiff admitted that he is
an “illiterate litigant and doesn’t understand the Court’s rules and procedures,” and
that he “is incarcerated and has limited access to [the] law library.” (Doc. 13 at ¶¶
2-3.) On October 22, 2015, the court denied Plaintiff’s request for a court
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appointed attorney, noting, inter alia, that all three defendants have filed motions
to dismiss and that, at first glance, it appears that Plaintiff’s complaint fails to set
forth a cause of action and seeks forms of relief that are not cognizable.” (Doc. 23,
p. 2.)
On November 12, 2015, following Plaintiff’s failure to timely file a response
to any of the pending motions to dismiss, the court ordered Plaintiff to show cause,
no later than November 20, 2015, as to why the motions to dismiss should not be
granted for failure to respond. (Doc. 25.) Plaintiff did not respond.
Mindful of Plaintiff’s pro se status , on November 24, 2015, the court issued
an order providing Plaintiff “one final opportunity to salvage his claims” and
ordering him “to show cause why this action should not be dismissed for failure to
prosecute” within ten days. (Doc. 26.) The court specifically warned Plaintiff that
“failure to respond . . . on or before December 4, 2015 [would] result in the
dismissal of this action.”. (Id.) Plaintiff again failed to timely respond.
However, on December 11, 2015, Plaintiff filed “objections” to—what
appears to be—the Social Security Administration’s motion to dismiss, contending
that the court lacked personal jurisidiction over the case. (Doc. 29, ¶ 4.) On the
same day, Plaintiff filed an untimely response to the court’s orders to show cause
(Doc. 27), and requested that the court grant him an extension of time to respond
to the three outstanding motions to dismiss (Doc. 28). In both his response to the
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orders to show cause and his motion for an extension of time, Plaintiff argued that
he should be given latitude in responding to the motions to dismiss because he is
incarcerated, is representing himself pro se, and has depleted his supply of
envelopes and his $10.00 monthly copying and mailing fee thereby inhibiting his
ability to file his required pleadings with both the court and opposing parties. (See
Docs. 27 & 28.) Plaintiff further explained that he has “other important legal
matters that [he is] currently involved in at this present point in time” that take
precedence over this case. (Doc. 28.) The court did not grant Plaintiff’s motion.
On December 29, 2015, Plaintiff filed briefs in opposition to the Department
of Labor and Industry’s motion to dismiss (Doc. 31) and the Social Security
Administration’s motion to dismiss (Doc. 32). In his briefs, Plaintiff argues that the
court lacks personal jurisdiction over the case and should remove it back to the
Dauphin County Court of Common Pleas. (Id.) To date, Plaintiff has failed to
respond to the Tax Bureau’s motion to dismiss.
II.

Discussion
In determining whether to dismiss a case for failure to prosecute, a court

should consider the following factors:
(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
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sanctions other than dismissal, which entails an analysis of
alternative sanctions; and (6) the meritoriousness of the
claim or defense.
Id. at 868. In balancing these factors, there is no “magic formula” or “mechanical
precision” to determine how they are to be considered. Torres v. Gautsch, 304
F.R.D. 189, 193 (M.D. Pa. 2015). Instead it is within the court’s discretion to
weigh each factor, and no single factor is dispositive to the issue. Id.
The court has weighed the above Poulis factors and concludes that
dismissal of the complaint is appropriate in this case. First, Plaintiff is proceeding
pro se and therefore his failure to timely respond to the court’s show cause orders
of November 12, 2015 and November 24, 2015 cannot be blamed on counsel.
Torres, 304 F.R.D. at 192 (explaining that, as unrepresented parties, pro se
plaintiffs cannot blame procedural defaults upon their attorneys and must bear the
consequences of ignoring court orders); Briscoe v. Klaus, 538 F.3d 252, 258-59
(“[I]t is logical to hold a pro se plaintiff personally responsible for delays in his
case because a pro se plaintiff is solely responsible for the progress of his case,
whereas a plaintiff represented by counsel relies, at least in part, on his or her
attorney.”)
Second, although this case is in its preliminary stages and therefore any
prejudice to the opposing party is minimal, it cannot be ignored that Plaintiff’s
decision to pursue his other legal matters at the expense of this case prejudices the
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defendants in this action who have complied with the rules of court and are
undoubtedly interested in an expeditious resolution of the matter.
Third, Plaintiff has twice failed to timely respond to court orders and has yet
to address the arguments raised by the pending motions to dismiss, indicating a
history of dilatoriness. Plaintiff was provided ample opportunity to substantively
oppose Defendants’ motions to dismiss or to show cause why the motions should
not be granted for failure to prosecute, and he was specifically warned that failure
to respond would result in dismissal of the action. Plaintiff’s belated explanations
for his failures to respond, including his incarceration and need to attend to more
pressing legal matters, are unavailing. Plaintiff must be more selective in picking
and choosing which legal matters to pursue given his circumstances and access to
resources. While the court is cognizant that the other matters may concern his
“inevitable release from prison” (Doc. 27), Plaintiff is personally responsible for
managing his criminal pursuits and the resources available to him in prison. It is
not for this court or the opposing party to bear the consequences of his allegedly
overly burdensome caseload.
With regard to the fourth factor, the court must decide if Plaintiff’s conduct
involves intentional and self-serving behavior,” rather than behavior that is
“merely negligent or inadvertent.” Briscoe, 538 F.3d at 262 (citations omitted). In
his December 11, 2015 filings, Defendant acknowledges that, due to his limited
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resources and competing obligations, he chose to forego active pursuit of this
action because his other pending matters took precedence. The court concludes this
choice is willful.
Fifth, the court is unable to find an appropriate alternative sanction to
dismissing this case. See id. at 263 (stating that where a plaintiff is proceeding pro
se, alternative sanctions such as imposing attorney fees are unavailable and
anything other than dismissal of the complaint “would not be an effective
alternative”) (citing Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002)).
The last factor the court must evaluate is the meritoriousness of Plaintiff’s
claim. Generally, in determining whether a claim is meritorious, the court applies
the standard for a motion to dismiss pursuant to Federal Rule of Procedure 12(b)(6)
for failure to state a claim. Briscoe, 538 F.3d at 263 (citing Poulis, 747 F.2d at 86970). Thus, a claim is meritorious “when the allegations of the pleadings, if
established at trial, would support recovery by [the] plaintiff.” Id. Although pro se
plaintiffs are afforded leniency in connection with pleadings, Plaintiff’s amended
complaint asserts only unsupported accusations with no factual details regarding
the alleged wrongdoing of Defendants. Plaintiff does not allege any facts as to
when or where the purported unlawful acts occurred; the identities of the
“companies” supposedly involved; any actions on the part of Defendants to acquire
or use his identity, or overt acts to further a conspiracy; or how he suffered or was
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damaged by this alleged activity. As such, the complaint amounts only to naked
assertions of wrongdoing, and is devoid of any merit.
III.

Conclusion
Accordingly, the court finds in its discretion that the six Poulis factors weigh

in favor of dismissal. Plaintiff has failed to timely comply with the court’s show
cause orders and has yet to substantively respond to Defendants’ motions to
dismiss, choosing to instead focus on his other legal matters. This case will
therefore be dismissed sua sponte pursuant to Federal Rule of Civil Procedure
41(b).
An appropriate order will follow.

s/Sylvia H. Rambo
United States District Judge
Dated: March 29, 2016

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