Johnson v. Garman et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 4/13/2018. (ve)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK GARMAN, et al.,
Pro se Plaintiff Michael Johnson (“Plaintiff”), an inmate previously confined at the State
Correctional Institution at Rockview in Bellefonte, Pennsylvania (“SCI-Rockview”), initiated the
above-captioned action pursuant to 42 U.S.C. § 1983 on May 16, 2017. (Doc. No. 1.) In the
caption of the complaint, Plaintiff names as Defendants Mark Garman (“Garman”), the
Superintendent of SCI-Rockview; SCI-Rockview; and SCI-Rockview officials and maintenance
employees. (Id.) Plaintiff alleges the following conditions of confinement claims against
Defendants: that (1) he was forced to drink non-potable water for over three months; (2) he was
subjected to excessively hot and pigeon-infested 1 living conditions; and (3) he was exposed to
second-hand tobacco smoke. (Id.)
Pursuant to the screening provisions of the Prison Litigation Reform Act of 1995
(“PLRA”), the Court issued a Memorandum and Order dismissing Plaintiff’s complaint and
granting him leave to file an amended complaint. (Doc. Nos. 9, 10.) On November 27, 2017,
Plaintiff filed a motion for leave to file an amended complaint (Doc. No. 11), which the Court
construed as Plaintiff’s amended complaint. The Court performed its screening obligations on
Plaintiff alleges that his living environment has become pigeon-infested with “filthy-nastypol[l]uted pigeon infested mess” which is “all over the wall mountings . . . floors, in the seating
areas, [and] on top of the tables.” (Doc. No. 1 at 1.)
the amended complaint and dismissed it, but granted Plaintiff a final opportunity to file a second
amended complaint within twenty (20) days of its March 8, 2018 Memorandum and Order.
(Doc. Nos. 12, 13.) The Court further cautioned Plaintiff that his failure to file a second
amended complaint within the time prescribed above would result in the dismissal of this action
for Plaintiff’s failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (Doc. No.
To date, Plaintiff has failed to file a second amended complaint and he has not requested
an extension of time in which to do so. Moreover, the docket reflects that on March 26, 2018,
Court documents mailed to Plaintiff at his last updated address of SCI-Rockview were returned
to the Clerk of Court because Plaintiff is no longer housed at that location. 2 (Doc. No. 14.)
Plaintiff’s failure to provide the Court with an updated address and failure to file a second
amended complaint indicates that he may have lost interest in prosecuting this lawsuit. For
instance, Plaintiff has failed to adhere to this Court’s May 16, 2017 Order, which placed an
affirmative obligation on him to keep the Court informed of his current address and provided that
his failure to notify the Court of his current address would be deemed an abandonment of the
lawsuit. (Doc. No. 3 at 4.) Additionally, this Court’s March 8, 2018 Order cautioned Plaintiff
that his failure to file a second amended complaint within the time prescribed above would result
in the dismissal of this action for his failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b). (Doc. No. 13.)
Federal Rule of Civil Procedure 41(b) allows for the dismissal of an action for “failure of
the plaintiff to prosecute or comply with these rules or order of court.” District courts have the
An April 9, 2018 inquiry to SCI-Rockview by the Court confirms that Plaintiff is no longer
incarcerated at SCI-Rockview.
inherent power to dismiss an action for failure to prosecute sua sponte. Chambers v. NASCO,
Inc., 501 U.S. 32, 44 (1991). In the instant case, Plaintiff has failed to both prosecute this action
and to comply with the May 16, 2017 and March 9, 2018 Orders of this Court by failing to keep
the Court apprised of his current address and failing to file a second amended complaint. When
determining whether to dismiss an action for a plaintiff’s failure to prosecute under Rule 41(b),
the Court must balance six (6) factors set forth in Poulis v. State Farm Fire and Casualty Co., 747
F.2d 863 (3d Cir. 1984). These factors include:
(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.
Id. at 868. Not all of the Poulis factors need be satisfied to dismiss a complaint. See Mindek v.
Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992); Shahin v. Delaware, 345 F. App’x 815, 817 (3d Cir.
As to the first factor, it is Plaintiff’s sole responsibility to comply with Court orders. See
Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002); Winston v. Lindsey, Civ. No. 09-224,
2011 U.S. Dist. LEXIS 137022, at *6 (W.D. Pa. Nov. 30, 2011) (concluding that a pro se litigant
“bears all of the responsibility for any failure to prosecute his claims”). Plaintiff was specifically
warned that his failure to keep the Court apprised of his current address and failure to timely file
a second amended complaint would result in the dismissal of this action. (Doc. Nos. 3, 13.) To
date, Plaintiff has complied with neither directive. This factor therefore weighs in favor of
dismissal. As to the second factor, this Court does not find that Defendants have been prejudiced
because they have not yet been served.
Examining the third factor, a history of dilatoriness, Plaintiff has not only failed to file a
second amended complaint as directed, but has also failed to inform the Court of his current
address. As is clear from the procedural background of this case, Plaintiff has not communicated
with the Court since the filing of his motion for leave to file an amended complaint (Doc. No.
11), on November 27, 2017, which this Court construed as his amended complaint (Doc. No.
12). A pro se plaintiff has the affirmative obligation to keep the Court informed of his address.
See (Doc. No. 3 at 4.) Plaintiff’s failure to provide the Court with an updated address as required
by the Court’s May 16, 2017 Order, coupled with Plaintiff’s failure to file a second amended
complaint in accordance with this Court’s March 9, 2018 Order, even after both Orders
cautioned Plaintiff that his case would be dismissed should he not comply, indicates an intent not
to continue with this litigation. See Pozoic v. Cumberland Cty. Prison, Civ. No. 11-1357, 2012
WL 114127, at *3 (M.D. Pa. Jan. 13, 2012); Bush v. Lackawanna Cty. Prison, Civ. No. 14-cv1253, 2017 WL 2468795, at *2 (M.D. Pa. June 7, 2017). Accordingly, this factor also weighs in
favor of dismissal.
The Court finds that the fourth factor, whether Plaintiff’s conduct was willful or in bad
faith, also weighs in favor of dismissal. Plaintiff’s failure to abide by the Court’s Orders
“demonstrate[s] a willful disregard for procedural rules and court directives.” Gilyard v.
Dauphin Cty. Work Release, Civ. No. 10-1657, 2010 U.S. Dist. LEXIS 128400, at *5-6 (M.D.
Pa. Dec. 6, 2010).
An examination of the fifth factor, effectiveness of sanctions other than dismissal, reveals
that no other sanction is a “viable alternative since this action cannot proceed without the
submission of a proper [second] amended complaint.” Pozoic, 2012 WL 114127, at *4 (citing
Purveegiin v. Gonzalez, Civ. No. 07-1020, 2009 U.S. Dist. LEXIS 34550, at *4 (M.D. Pa. Apr.
Regarding the sixth factor, the meritoriousness of the claim, the Court has determined in
its previous screening Memorandum that Plaintiff’s amended complaint is in violation of Federal
Rule of Civil Procedure 10(a) for failing to identify any proper party, other than Superintendent
Garman. (Doc. No. 12 at 5.) Moreover, Plaintiff’s amended complaint did not identify any
individual Defendant engaged in misconduct, indicate how and when each Defendant was
involved in any alleged wrongdoing, or allege any actual injury resulting from the alleged
constitutional deprivations. (Id. at 5-6.) With regard to Garman, the Court found that Plaintiff’s
amended complaint failed to allege any personal involvement in any constitutional violation by
Garman, and that Garman cannot be liable pursuant to § 1983 under the traditional standard of
respondeat superior without specific allegations that he knew of, participated in or acquiesced in
such constitutional violations. (Id. at 7.)
Upon balancing all of the Poulis factors, the Court finds that the majority of the six
factors weigh heavily in favor of dismissing this action pursuant to Federal Rule of Civil
Procedure 41(b) for Plaintiff’s failure to prosecute.
For the foregoing reasons, the Court will dismiss this action pursuant to Federal Rule of
Civil Procedure 41(b) for Plaintiff’s failure to prosecute. An appropriate Order follows.
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