Figueroa v. Moore-Smeal et al

Filing 51

MEMORANDUM This Court is satisfied that based on the present circumstances, dismissal of this action without prejudice for failure to prosecute is warranted. However, in the event that Plaintiff provides this Court with his current address within fourteen (14) days of the date of this Memorandum and Order, this determination will be reconsidered. An appropriate order will enter.(See Memorandum)Signed by Honorable Richard P. Conaboy on 10/31/21. (cc)

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

ISMAEL FIGUEROA,
Plaintiff
v.
SHIRLEY MOORE-SMEAL, ET AL.,
Defendants

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CIVIL NO. 3:CV-11-1088
(Judge Conaboy)

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MEMORANDUM
Background
Ismael Figueroa (Plaintiff) filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983 while previously confined at
the State Correctional Institution, Coal Township, Pennsylvania
(SCI-Coal Twp.).1 Service of the Complaint was previously ordered.
Plaintiff subsequently notified this Court that he completed
service of his state prison sentence on February 23, 2012 and had
been transferred to the Northumberland County Prison.

See Doc. 29.

By Memorandum and Order dated March 2, 2012, this Court
partially granted Defendants’ motion seeking partial dismissal.2
See Doc. 30.

Specifically, dismissal was granted in favor of all

1. Plaintiff was subsequently transferred to the Northumberland
County Prison, Sunbury, Pennsylvania. See Doc. 29.
2. The motion did not seek dismissal of the claim that Defendant
Sergeant Young placed razor blade pieces in Plaintiff’s food on
September 24, 201. See Doc. 21, p. 23.
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named Defendants3 with the exception of the allegations that
Defendant SCI-Coal Twp. Sergeant Young: (1) placed a razor blade in
Plaintiff’s food and verbally threatened the prisoner on September
24, 2001; (2) subjected Figueroa to excessive force on October 13,
2010; and (3) retaliated against Plaintiff for his filing of an
institutional grievance.4
Defendant Young subsequently filed an answer to the
Complaint and was also granted leave to take the inmate Plaintiff’s
deposition.

On September 25, 2012, Young filed an amended

certificate of service which indicated that Plaintiff had been
released from custody and was residing in Chambersburg,
Pennsylvania.

See Doc. 45.

It is also noted that correspondence

from this Court which was sent to Plaintiff at the Northumberland
County Prison was returned that same day as undeliverable.

See

Doc. 46.
Presently pending is Defendant Young’s motion seeking

3. There are also claims asserted against John Doe Defendants who
have yet to be identified.
4. It is alleged that Defendant Young verbally threatened
Plaintiff’s life when delivering the prisoner’s lunch tray on
September 24, 2010. Figueroa states that he experienced sharp
pain and suffered lacerations to his mouth when he ate food from
the tray and discovered that his meal had been contaminated with
razor blade pieces. Doc. 1 at ¶ 29-30.
The Complaint further claims that Young “forcefully” grabbed
Plaintiff’s arm and verbally threatened him on October 13, 2010
while escorting him from the exercise yard. Id. at ¶ 52. Young
also purportedly denied Plaintiff access to the prison law library
on October 20, 2010. It is further asserted that Yong’s actions
were taken in retaliation for the inmate’s initiation of
institutional grievances against the Defendant.
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dismissal of Plaintiff’s action for failure to prosecute.

See Doc.

48.
Discussion
Defendant Sgt. Young acknowledges that Plaintiff completed
service of his state sentence on February 12, 2012 at which time he
was transferred to the Northumberland County Prison.

The Moving

Defendant correctly notes that Plaintiff notified this Court of
that change in address.

Young asserts that he was advised by the

Northumberland County Prison in September, 2012 that Figuerora had
been released and was provided with the Plaintiff’s last known
address (Chambersburg).

See Doc. 49, p. 2.

Defendant Young asserts that he sent a notice to the
Chambersburg address informing Plaintiff that his deposition would
be taken on October 12, 2012.

The notice of deposition was

accompanied by a cover letter, and directions to the law office
where the deposition would be conducted.

However, although the

notice of deposition was not returned as undeliverable, Plaintiff
did not appear at the scheduled deposition or otherwise contact
counsel for Defendant Young.

Based upon those circumstances, the

Defendant requests that Plaintiff’s action be dismissed for failure
to prosecute.
If a plaintiff fails to prosecute or comply with a court
order, the court may dismiss the action, with prejudice.

See

Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d
Cir. 1984); Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.
1991) (failure of a plaintiff to comply with a court’s specific
direction to comply with a local rule which required the filing of
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an opposing brief, warranted the treatment of a motion to dismiss
as being unopposed and subject to dismissal without a merits
analysis).

In a similar case, the Court of Appeals for the Third

Circuit recognized that a district court “has the authority to
dismiss a suit sua sponte for failure to prosecute by virtue of its
inherent powers and Federal Rule of Civil Procedure 41(b)”5 when a
litigant fails to comply with a court order directing him to file
an amended complaint.

See Azubuko v. Bell National Organization,

243 Fed. Appx. 728, 729 (3d Cir. 2007).
The Court of Appeals for the Third Circuit in Poulis set
forth six (6) factors which must be considered in determining
whether to dismiss a complaint with prejudice for failure to
prosecute:

(1) extent of the party’s personal involvement; (2)

prejudice to the opposing party by the dilatoriness; (3) whether a
history of dilatoriness existed; (4) whether the dilatoriness was
wilful and in bad faith; (5) possible effectiveness of alternative
sanctions; and (6) the merit of the claim or defense.

See Adams v.

Trustees, NJ Brewery Trust Fund, 29 F.3d 863 (3d Cir. 1994).
Deposition
Federal Rule of Civil Procedure 30(b)(1), (2), and (3)
provide as follows:
5.
Federal Rule of Civil Procedure 41(b) provides 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 of any claim against it. Unless
the dismissal order states otherwise, a dismissal under
this subdivision (b) ... operates as an adjudication on
the merits.
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(1) A party who wants to depose a person by oral
questions must give reasonable written notice to
every other party. The notice must state the time
and place of the deposition and, if known, the
deponent’s name and address. If the name is
unknown, the notice must provide a general
description sufficient to identify the person or the
particular class or group to which the person
belongs.
Based on a review of the record, there is no evidence that
the Moving Defendant failed to comply with any of the requirements
set forth in Rule 30.

As previously noted, Young also previously

sought and was granted permission to take the deposition of the
Plaintiff while he was still incarcerated.6
Figueroa’s lack of appearance at his scheduled deposition
lacked any apparent justification and his non-cooperation in the
discovery process is an appropriate basis for dismissal of the
remainder of this action for failure to prosecute.

This conclusion

is buttressed by his failure to oppose the pending motion.7
Address Change
A copy of this Court’s Standing Practice Order was mailed to
Plaintiff on June 8, 2011.

See Doc. 7.

The Standing Practice

Order provides in relevant part as follows:
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

6.
While Federal Rule of Civil Procedure 26(c)(5) allows a
court, under certain circumstances, to issue a protective order
regarding the taking of a deposition, the Plaintiff did not seek
the issuance of a protective order prior to the October 12, 2012
deposition.
7. It is also noted that Plaintiff has not made any submissions to
this Court since July 13, 2012.
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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.
Id., p. 4.
M.D. Pa. Local Rule 83.18 similarly provides that a pro se
litigant has an affirmative obligation to keep the court informed
of his or her address and must immediately inform the court if his
or her address changes in the course of the litigation.
Although Plaintiff advised this Court of his transfer to the
Northumberland County Prison, he did not notify this Court when he
was released from that facility nor did he provide the Court with
his last known Chambersburg address.

More importantly, it is

unknown if Plaintiff is or ever resided at the Chambersburg
address.

Consequently, Figueroa has clearly failed to comply with

a requirement of the Court’s Standing Practice Order and Local Rule
83.18.

The inability of this Court to communicate with Plaintiff

is solely the result of his own inaction and prevents the taking of
any other sanctions.
Cir. 1984).

See Poulis v. State Farm, 747 F. 2d 863 (3d

Since Figueroa’s present whereabouts are unclear, it

would be a waste of judicial resources to allow this action to
continue.
Conclusion
Based upon an application of the Poulis factors, adequate
grounds have been established for the extreme sanction of
dismissal.8

8.

This conclusion is premised on the following

Although Azubuko, 243 Fed. Appx. at 729, recognizes a
(continued...)
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considerations: (1) Plaintiff’s non-appearance at his scheduled
deposition; (2) his failure to notify opposing counsel or the Court
that he would not appear; (3) the failure of Plaintiff to notify
either the Court or opposing counsel of his current address; (4)
Plaintiff’S failure to respond to the pending motion; and (5) the
obvious prejudice to the Defendant.

Those factors support a

finding of dilatoriness and wilful conduct by Figueroa and other
sanctions are not a viable alternative since this action cannot
proceed because the Plaintiff’s present whereabouts are unclear and
he has not cooperated in the discovery process.
This Court is satisfied that based on the present
circumstances, dismissal of this action without prejudice for
failure to prosecute is warranted.

However, in the event that

Plaintiff provides this Court with his current address within
fourteen (14) days of the date of this Memorandum and Order, this
determination will be reconsidered.

An appropriate order will

enter.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: OCTOBER 31, 2012

8. (...continued)
“balancing under Poulis is unnecessary” in cases such as the
present matter where a litigant’s conduct makes adjudication of the
case impossible, other Third Circuit decisions indicate that the
Poulis analysis should be undertaken. See Hernandez v. Palakovich,
293 Fed. Appx. 890, 894 (3d Cir. 2008) (Poulis factors must be
considered before dismissing a case as a sanction for failure to
follow a court order).
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