Burton v. Wetzel et al

Filing 95

MEMORANDUM (Order to follow as separate docket entry) re 83 MOTION to Dismiss for Lack of Prosecution filed by David Radziewicz, Sinicky, Valarie Kusiak, Brownawell, Mark Phillipi, Paul Noel, Brenda Tritt, Kropp, Manes, Kelly Czopek, Trevor Winguard, CJ McKean, Michael Harlow, Sparks, Linda Chismar, Tom McGinley, John Wetzel, Al Joseph, Daramo. Signed by Chief Magistrate Judge Susan E. Schwab on November 6, 2018. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NIARA BURTON,

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Plaintiff,
v.
JOHN WETZEL, et al.,
Defendants.

CIVIL NO.: 1:16-CV-01953

(Chief Magistrate Judge Schwab)

MEMORANDUM
I. Introduction.
In this 42 U.S.C. § 1983 civil rights action, pro se plaintiff Niara Burton
(“Ms. Burton”), a transgender inmate in the custody of the Pennsylvania
Department of Corrections (“DOC”), alleges that Secretary John Wetzel and other
officials and staff members of the DOC (collectively referred to as “defendants”)
are responsible for failing to prevent or otherwise subjecting her to foreseeable
sexual harassment and abuse, for retaliating against her when she filed grievances
reporting such abuse, and for denying her necessary medical treatment, including
gender affirming surgery. In connection with these allegations, Ms. Burton asserts
a deprivation of her rights under the First, Eighth, and Fourteenth Amendments to
the United States Constitution, as well as violations of the Prison Rape Elimination
Act, 42 U.S.C. § 15601. Doc. 55.

Presently, we consider the defendants’ motion to dismiss the case for lack of
prosecution. For the reasons that follow, we will deny the defendants’ motion.

II. Background and Procedural History.
Ms. Burton commenced this action on September 26, 2016, by filing,
through counsel, a complaint pursuant to 42 U.S.C. § 1983, alleging that the
Defendants deprived her of rights guaranteed by the Eighth and Fourteenth
Amendments to the United States Constitution. Doc. 1. On May 2, 2017, the
parties consented to proceed before a United States Magistrate Judge (doc. 20), and
shortly thereafter the matter was referred to the undersigned. Doc. 21.
On July 25, 2017, Ms. Burton filed a motion for a temporary restraining
order and/or a preliminary injunction. Doc. 30. Ms. Burton’s motion sought to
enjoin the defendants “from taking any adverse action against her … in retaliation
for filing grievances reporting sexual abuse and harassment.” Id. at 1. The motion
further sought to compel the defendants to release her from restrictive housing. Id.
On September 27, 2017, Magistrate Judge Martin C. Carlson, writing for this court,
denied the plaintiff’s motion. Doc. 57. Judge Carlson reasoned that Burton had
not met her “heavy burden of establishing a sufficiently high probability of
ultimate success on the merits.” Id. at 22. Judge Carlson further reasoned that
even if she had established a high probability of success on the merits, she could
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still not obtain the preliminary injunction because she had not shown “that hers is a
narrowly tailored request for injunctive relief which is needed to prevent imminent
irreparable harm.” Id. at 23. The defendants subsequently filed a motion to
recover their attorney’s fees for litigating the preliminary injunction (doc. 60),
which we denied on August 14, 2018. Doc. 82.
While her injunctive motion was still pending, Ms. Burton filed a motion for
leave to amend her complaint. Doc. 36. On September 26, 2018, we granted her
motion and docketed her proposed amended complaint. See docs. 54-55. Ms.
Burton’s amended complaint incorporates a new count asserting a deprivation of
her First Amendment right to petition the government for redress of grievances.
Doc. 55 ¶¶ 208-13.
Shortly after the court denied Ms. Burton’s motion for a preliminary
injunction and Ms. Burton filed her amended complaint, Ms. Burton’s attorneys
jointly filed a motion to withdraw from the case because (1) Ms. Burton had lost
confidence in their representation, (2) the attorney-client relationship had broken
down, and (3) Ms. Burton demanded that the attorneys take actions “with which
they have a fundamental disagreement.” Doc. 66. On January 2, 2018, we granted
counsel’s motion to withdraw and conditionally granted Ms. Burton’s motion to
appoint counsel, directing the Clerk of Court to forward the case to the Federal Bar
Association for the purpose of trying to find pro bono counsel to represent Ms.
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Burton. Doc. 74. On March 7, 2018, we informed the parties that the Federal Bar
Association had been unsuccessful in securing pro bono counsel to represent Ms.
Burton, and therefore informed Ms. Burton that she would have to litigate the case
pro se. Doc. 78. Since that time, Ms. Burton has filed three documents—one
letter and two motions—requesting that this court stay the case until such time as
she can secure counsel. See docs. 79, 87, 91. We address Ms. Burton’s motions to
stay in a separately docketed order.
The defendants filed the instant motion to dismiss for lack of prosecution on
August 15, 2018 (doc. 83), along with a supporting brief on August 27, 2018 (doc.
88). Ms. Burton did not respond to the defendants’ motion in a timely response,
neglecting to do so until October 25, 2018. Doc. 90. Thereafter, Ms. Burton filed
two more motions opposing the defendants’ motion to dismiss. See docs. 92-93.
We analyze the defendants’ motion below.

III. Discussion.
“Federal Rule of Civil Procedure 41(b) permits a District Court to dismiss a
plaintiff's case for failure to prosecute.” Briscoe v. Klaus, 538 F.3d 252, 258 (3d
Cir. 2008) (citing Fed.R.Civ.P. 41(b)). An involuntary dismissal of a case,
however, is a “drastic” sanction. Poulis v. State Farm Fire and Casualty Co., 747
F.2d 863, 867 (3d Cir. 1984).
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In considering whether to involuntarily dismiss a case under Rule 41, a court
must consider “(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.” Poulis, 747 F.2d at 868 (emphasis in
original). “[N]o single Poulis factor is dispositive,” and “not all of the Poulis
factors need to be satisfied in order to dismiss a complaint.” Briscoe, 538 F.3d at
263. In addition, “it is imperative that the District Court have a full understanding
of the surrounding facts and circumstances pertinent to the Poulis factors before it
undertakes its analysis.” Id. at 258.
Turning to the first Poulis factor, the defendants point to the fact that Ms.
Burton has requested to stay the case on multiple occasions, despite her awareness
that the court was unable to find pro bono counsel to represent her, to suggest that
Ms. Burton bears significant personal responsibility for her failure to move the
case forward. While it is true that a pro se plaintiff is personally responsible for
her failure to move a case forward, see Briscoe, 538 F.3d at 258, we cannot ignore
the fact that Ms. Burton had counsel when she filed this case but no longer has
counsel now. Seen in that context, Ms. Burton’s multiple requests to stay the case
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until she secures counsel indicate her awareness that moving forward with the case
will be difficult without counsel, rather than her intent not to move the case
forward at all. While Ms. Burton still bears the ultimate responsibility for her
failure to move the case forward, this factor does not strongly weigh in favor of
dismissal.
With regard to the second Poulis factor, prejudice to the other party, the
defendants vaguely assert that “[m]emories fade and employees retire or move on
from the Department.” Doc. 88 at 4. We construe the defendants’ argument to be
that they are prejudiced by the delays in the case because the evidence in the case
will become less reliable over time. However, given the lack of facts that the
defendants have asserted to prove prejudice, we find that the second Poulis factor
weighs against dismissal of the case.
For the third Poulis factor, “[e]xtensive 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.” Briscoe,
538 F.3d at 260 (quoting Adams v. Trs. of N.J. Brewery Emps. Pension Tr. Fund
29 F.3d 863, 874 (3d Cir. 1994)). “[C]onduct that occurs one or two times is
insufficient to demonstrate a ‘history of dilatoriness.” Id. at 261 (quoting
Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir. 1984)). The defendants again
point to Ms. Burton’s multiple requests to stay the case, as well as the fact that she
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made such requests by letter, rather than motion, as establishing her history of
dilatoriness. Doc. 88 at 4. While we acknowledge the defendants’ argument, as
well as Ms. Burton’s significant delay in filing a brief in opposition to the
defendants’ motion to dismiss, we do not find that Ms. Burton’s actions constitute
the “extensive … delay or delinquency” necessary to establish a history of
dilatoriness. See Briscoe, 538 F.3d at 260. The third Poulis factor thus does not
weigh in favor of dismissal.
Similarly, we do not think Ms. Burton’s conduct was willful or in bad faith.
To determine whether a litigant’s actions were willful or in bad faith for purposes
of the fourth Poulis factor, “the District Court must consider whether the conduct
was ‘the type of willful or contumacious behavior which was characterized as
flagrant bad behavior.” Id. at 262 (quoting Adams, 29 F.3d at 875). “Generally,
‘willfulness involves intentional or self-serving behavior.’” Id. (quoting Adams, 29
F.3d at 875). “If the conduct is merely negligent or inadvertent, we will not call
the conduct ‘contumacious.’” Id. As evidence of her bad faith, the defendants
again point to the fact that Ms. Burton filed a request to stay the case by letter,
rather than motion, despite instructions from the court to make such a request by
motion. Doc. 88 at 5. Ms. Burton has indicated to the court by letter both that she
has been having trouble with her mail while in prison (doc. 86) and that she has
been confused about the procedural posture of the case (doc. 89). Moreover, we
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take judicial notice of the recent changes to the prison mail policy made by the
Pennsylvania Department of Corrections. Given these facts, we find Ms. Burton’s
conduct to be “merely negligent or inadvertent,” Briscoe, 538 F.3d at 260, and thus
find that the fourth Poulis factor does not weigh in favor of dismissal.
With regard to the fifth Poulis factor, the defendants are correct that in a
case involving a pro se plaintiff, no alternative sanctions exist “because monetary
sanctions, including attorney’s fees, ‘would not be an effective alternative.’” Id. at
262-63 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002)). The
fifth Poulis factor thus weighs in favor of dismissal.
Finally, the sixth Poulis factor requires an analysis of “the meritoriousness
of the claim or defense.” Poulis, 747 F.2d at 868 (emphasis in original). A claim
or defense is meritorious “when the allegations of the pleadings, if established at
trial, would support recovery by plaintiff or would constitute a complete defense.”
Briscoe, 538 F.3d at 263. This standard is borrowed from “the standard for a Rule
12(b)(6) motion to dismiss for failure to state a claim.” Id. The defendants argue
that this factor is neutral in this case since dispositive motions have not yet been
filed, but we disagree. Ms. Burton’s claims would clearly be sufficient to survive a
Rule 12(b)(6) motion to dismiss. We find this especially clear in light of the fact
that the defendants did not file a Rule 12(b)(6) motion to dismiss in this case: if the
defendants thought the case did not state a claim upon which relief could be
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granted sufficient to survive a Rule 12(b)(6) motion to dismiss, then they almost
certainly would have filed such a motion; their failure to do so is telling. We
therefore find that the sixth and final Poulis factor does not weigh in favor of
dismissal.
Thus, the second, third, fourth, and sixth factors weigh against dismissal of
the case, while the first and fifth factors weigh in favor of dismissal, though the
first only slightly. Considering those six factors together, we find that Ms.
Burton’s case should not be dismissed for failure to prosecute.

IV. Conclusion.
Based on the foregoing analysis, we will deny the defendants’ motion to
dismiss for lack of prosecution (doc. 83). An appropriate implementing order
follows.
S/Susan E. Schwab
Susan E. Schwab
United States Chief Magistrate Judge

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