Bliss v. United States et al

Filing 100

REPORT AND RECOMMENDATION - Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants motions to dismiss, or in the alternative, for summary judgment (Docs. 84 and 85 .), which have not been opposed by the plaintiff, be GRANTE D and the plaintiffs amended complaint (Doc. 82 .), be dismissed without prejudice to consideration of a timely filed second amended complaint by Bliss. Objections to R&R due by 10/16/2015. Signed by Magistrate Judge Martin C. Carlson on September 28, 2015. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NEFTALI BLISS,
Plaintiff,
v.
UNITED STATES, et al.,
Defendants.

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Civil No. 3:12-CV-2254

(Judge Kosik)
(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION
I.

Statement of Facts and of the Case

This pro se civil rights action was initially brought by the plaintiff, a federal
prisoner, through the filing of a complaint on November 13, 2012. (Doc. 1.) As a pro
se litigant the plaintiff was advised by this Court at this outset of this lawsuit of his
responsibilities in this litigation. Thus, on November 14, 2012, the district court
entered its Standing Practice Order in this case, an order which informed the plaintiff
of his responsibility to reply to defense motions, and warned him in clear and precise
terms of the consequences which would flow from a failure to comply with briefing
schedules on motions, stating:
If the party opposing the motion does not file his or her brief and any
evidentiary material within the 14-day time frame, Local Rule 7.6
provides that he or she shall be deemed not to oppose the moving party’s
motion. The motion may therefore be granted if: (1) the court finds it

meritorious; or (2) the opposing party fails to comply with Local Rule 7.6
despite being ordered to do so by the court.
(Doc. 2, p. 3.)
On September 20, 2013, the defendants filed motions to dismiss and for
summary judgment with respect to this initial complaint. (Docs. 20-21.) On
September 24, 2013, Bliss then attempted to file a supplemental complaint. (Doc. 24.)
Because the complaint did not stand on its own and was replete with numerous
unrelated allegations, defendants filed a motion to strike the supplemental complaint.
(Doc. 25.) The Court granted this motion to strike on March 31, 2014. (Doc. 46.)
Defendants then filed briefs in support of their motions to dismiss and for summary
judgment with regard to Bliss’ initial complaint on April 14, 2014. (Docs. 49, 51.)
On September 8, 2014, the Court granted defendants’ motion to the extent that the
plaintiff was directed to file an amended complaint in order to comply with Fed. R.
Civ. P. 20 regarding proper joinder. (Doc. 74.) After several delays, on February 10,
2015, Bliss filed an amended complaint. (Doc. 82.) Fourteen days later, on February
24, 2015, defendants then renewed their motions to dismiss or for summary judgment.
(Docs. 84-85.)
On March 10, 2015, Bliss sought an extension of time in which to respond to
these dispositive motions, (Doc. 92.), which was granted by the Court on March 30,

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2015. (Doc. 93.) Under the terms of this order Bliss was provided an additional 30
days in which to respond to these motions, a deadline which lapsed at the end of April,
2015. Bliss has never responded to these motions, and the extended deadline for a
response has now long since passed. Instead, Bliss has tacitly acknowledged the
persistent flaws in his pleadings by seeking, and receiving, leave to further amend his
complaint. (Docs. 96 and 98.) The deadline for filing a second amended complaint
is imminent. If Bliss complies with the Court’s direction and files this second
amended complaint, his prior amended complaint will be a nullity since, as a matter
of law, an amended complaint takes the place of the original complaint, effectively
invalidating the prior complaint. Crysen/Montenay Energy Co. v. Shell Oil Co. (In re
Crysen/Montenay Energy Co.), 226 F.3d 160, 162 (2d Cir. 2000) ("[A]n amended
pleading ordinarily supersedes the original and renders it of no legal effect"); see 6
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure § 1476 (2d ed. 1990) ("A pleading that has been amended … supersedes the
pleading it modifies…. Once an amended pleading is interposed, the original pleading
no longer performs any function in the case…."). As such, dismissal of the amended
complaint will be appropriate.
In any event, given this continuing, and on-going, inaction with respect to the
motions to dismiss, or in the alternative, for summary judgment, challenging Bliss’
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amended complaint, we will deem these motions ripe for resolution. For the reasons
set forth below, we recommend that the motions to dismiss, or in the alternative, for
summary judgment (Docs. 84 and 95.), with respect to Bliss’ amended complaint
(Doc. 82.) be granted.
II.

Discussion
A.

Under The Rules of This Court This Motion to Dismiss Should
Be Deemed Unopposed and Granted

At the outset, under the Local Rules of this Court the plaintiff should be deemed
to concur in this motion to dismiss, since the plaintiff has failed to timely oppose the
motion, or otherwise litigate this case. This procedural default completely frustrates
and impedes efforts to resolve this matter in a timely and fair fashion, and under the
Rules of this Court warrants dismissal of the action, since Local Rule 7.6 of the Rules
of this Court imposes an affirmative duty on the plaintiff to respond to motions and
provides that
Any party opposing any motion, other than a motion for summary
judgment, shall file a brief in opposition within fourteen (14) days after
service of the movant's brief, or, if a brief in support of the motion is not
required under these rules, within seven (7) days after service of the
motion. Any party who fails to comply with this rule shall be deemed not
to oppose such motion. Nothing in this rule shall be construed to limit
the authority of the court to grant any motion before expiration of the
prescribed period for filing a brief in opposition. A brief in opposition
to a motion for summary judgment and LR 56.1 responsive statement,
together with any transcripts, affidavits or other relevant documentation,
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shall be filed within twenty-one (21) days after service of the movant’s
brief.
Local Rule 7.6 (emphasis added).
It is now well-settled that “Local Rule 7.6 can be applied to grant a motion to
dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with
the [R]ule after a specific direction to comply from the court.’ Stackhouse v.
Mazurkiewicz, 951 F.2d 29, 30 (1991).” Williams v. Lebanon Farms Disposal, Inc.,
No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). In this case the
plaintiff has not complied with the Local Rules, or this Court’s Standing Practice
Order, by filing a timely response to this motion. Therefore, these procedural defaults
by the plaintiff compel the Court to consider:
[A] basic truth: we must remain mindful of the fact that “the Federal
Rules are meant to be applied in such a way as to promote justice. See
Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve
cases on their merits whenever possible. However, justice also requires
that the merits of a particular dispute be placed before the court in a
timely fashion ....” McCurdy v. American Bd. of Plastic Surgery, 157
F.3d 191, 197 (3d Cir.1998).
Lease v. Fishel, 712 F. Supp. 2d 359, 371 (M.D.Pa. 2010).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of
our legal system. A failure on our part to enforce compliance with the rules, and
impose the sanctions mandated by those rules when the rules are repeatedly breached,

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“would actually violate the dual mandate which guides this Court and motivates our
system of justice: ‘that courts should strive to resolve cases on their merits whenever
possible [but that] justice also requires that the merits of a particular dispute be placed
before the court in a timely fashion.’ ” Id. Therefore, we are obliged to ensure that
one party’s refusal to comply with the rules does not lead to an unjustified prejudice
to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the plaintiff has failed to
comply with Local Rule 7.6 by filing a timely response to these dispositive motions.
This failure now compels us to apply the sanction called for under Rule 7.6 and deem
the plaintiff to not oppose these motions.
B.

Dismissal of this Case Is Also Warranted Under Rule 41

Beyond the requirements imposed by the Local Rules of this Court, Rule 41(b)
of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for
failure to prosecute, stating that: “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.” Fed. R. Civ. P. 41(b). Decisions regarding dismissal of actions for failure
to prosecute rest in the sound discretion of the Court, and will not be disturbed absent
an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.

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2002)(citations omitted). That discretion, however, while broad is governed by certain
factors, commonly referred to as Poulis factors. As the United States Court of Appeals
for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in
dismissing a case for failure to prosecute], we evaluate its balancing of
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 sanctions other than dismissal, which
entails an analysis of alternative sanctions; and (6) the meritoriousness
of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d
863, 868 (3d Cir.1984).
Emerson, 296 F.3d at 190.
In exercising this discretion “there is no ‘magic formula’ that we apply to
determine whether a District Court has abused its discretion in dismissing for failure
to prosecute.” Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011)(quoting
Briscoe v. Klem, 538 F.3d 252 (3d Cir. 2008)) Therefore, “[i]n balancing the Poulis
factors, [courts] do not [employ] a . . . ‘mechanical calculation’ to determine whether
a District Court abused its discretion in dismissing a plaintiff's case. Mindek v.
Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992).” Briscoe v. Klaus, 538 F.3d at 263.
Consistent with this view, it is well-settled that “ ‘no single Poulis factor is
dispositive,’ Ware, 322 F.3d at 222, [and it is] clear that ‘not all of the Poulis factors
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need be satisfied in order to dismiss a complaint.’ Mindek, 964 F.2d at 1373.”
Briscoe v. Klaus, 538 F.3d at 263. Moreover, recognizing the broad discretion
conferred upon the district court in making judgments weighing these six factors, the
court of appeals has frequently sustained such dismissal orders where there has been
a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser
sanction. See, e.g., Emerson v. Thiel College, supra; Tillio v. Mendelsohn, 256 F.
App’x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App’x 506 (3d Cir.
2007); Azubuko v. Bell National Organization, 243 F. App’x 728 (3d Cir. 2007).
In this case, a dispassionate assessment of the Poulis factors weighs heavily in
favor of dismissing this action. At the outset, a consideration of the first Poulis factor,
the extent of the party's personal responsibility, shows that the delays in this case are
entirely attributable to the plaintiff, who has failed to abide by court orders, and has
otherwise neglected to litigate this case, or respond to defense motions.
Similarly, the second Poulis factor– the prejudice to the adversary caused by the
failure to abide by court orders–also calls for dismissal of this action. Indeed, this
factor–the prejudice suffered by the party seeking sanctions–is entitled to great weight
and careful consideration. As the United States Court of Appeals for the Third Circuit
has observed:

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“Evidence of prejudice to an adversary would bear substantial weight in
support of a dismissal or default judgment.” Adams v. Trustees of N.J.
Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d
Cir.1994) (internal quotation marks and citation omitted). Generally,
prejudice includes “the irretrievable loss of evidence, the inevitable
dimming of witnesses' memories, or the excessive and possibly
irremediable burdens or costs imposed on the opposing party.” Id. at 874
(internal quotation marks and citations omitted). . . . However, prejudice
is not limited to “irremediable” or “irreparable” harm. Id.; see also Ware
v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.2003); Curtis T. Bedwell
& Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d
Cir.1988). It also includes “the burden imposed by impeding a party's
ability to prepare effectively a full and complete trial strategy.” Ware,
322 F.3d at 222.
Briscoe v. Klaus, 538 F.3d at 259-60.
In this case the plaintiff’s failure to litigate this claim or comply with Court
orders now wholly frustrates and delays the resolution of this action. In such
instances, the defendants are plainly prejudiced by the plaintiff’s continuing inaction
and dismissal of the case clearly rests in the discretion of the trial judge. Tillio v.
Mendelsohn, 256 F. App’x 509 (3d Cir. 2007) (failure to timely serve pleadings
compels dismissal); Reshard v. Lankenau Hospital, 256 F. App’x 506 (3d Cir. 2007)
(failure to comply with discovery compels dismissal); Azubuko v. Bell National
Organization, 243 F. App’x 728 (3d Cir. 2007) (failure to file amended complaint
prejudices defense and compels dismissal).

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When one considers the third Poulis factor-the history of dilatoriness on the
plaintiff’s part–it becomes clear that dismissal of this action is now appropriate. In
this regard, it is clear that “‘[e]xtensive or repeated delay or delinquency constitutes
a history of dilatoriness, such as consistent non-response . . . , or consistent tardiness
in complying with court orders.’ Adams, 29 F.3d at 874.” Briscoe v. Klaus, 538 F.3d
at 260-61 (some citations omitted). Here, the plaintiff has ignored and failed to
respond to two defense summary judgment motions for the past six months. The
plaintiff has also failed to timely file pleadings, and has not complied with the
Standing Practice Order of the Court.

Thus, the plaintiff’s conduct displays

“[e]xtensive or repeated delay or delinquency [and conduct which] constitutes a
history of dilatoriness, such as consistent non-response . . . , or consistent tardiness in
complying with court orders.” Adams, 29 F.3d at 874.
The fourth Poulis factor–whether the conduct of the party or the attorney was
willful or in bad faith–also cuts against the plaintiff in this case. In this setting we
must assess whether this conduct reflects mere inadvertence or willful conduct, in that
it involved “strategic,” “intentional or self-serving behavior,” and not mere
negligence. Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863,
875 (3d Cir.1994). At this juncture, when the plaintiff has failed to comply with
instructions of the Court directing the plaintiff to take specific actions in this case, and
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has violated the Local Rules, the Court is compelled to conclude that the plaintiff’s
actions are not accidental or inadvertent but instead reflect an intentional disregard for
this case and the Court’s instructions.
While Poulis also enjoins us to consider a fifth factor, the effectiveness of
sanctions other than dismissal, cases construing Poulis agree that in a situation such
as this case, where we are confronted by a pro se litigant who will not comply with the
rules or court orders, lesser sanctions may not be an effective alternative. See, e.g.,
Briscoe v. Klaus, 538 F.3d 252, 262-63 (3d Cir. 2008); Emerson, 296 F.3d at 191.
This case presents such a situation where the plaintiff’s status as a pro se litigant
severely limits the ability of the Court to utilize other lesser sanctions to ensure that
this litigation progresses in an orderly fashion. In any event, by entering our prior
orders, and counseling the plaintiff on his obligations in this case, we have endeavored
to use lesser sanctions, but to no avail. The plaintiff still declines to obey Court
orders, and otherwise ignores his responsibilities as a litigant. Since lesser sanctions
have been tried, and have failed, only the sanction of dismissal remains available to
the Court.
Finally, under Poulis we are cautioned to consider one other factor, the
meritoriousness of the plaintiff’s claims. In our view, however, consideration of this
factor cannot save this particular plaintiff’s claims, since the plaintiff is now wholly
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non-compliant with his obligations as a litigant. The plaintiff cannot refuse to address
the merits of his claims, and then assert the untested merits of these claims as grounds
for denying a motion to sanction him. Furthermore, it is well-settled that “ ‘no single
Poulis factor is dispositive,’ Ware, 322 F.3d at 222, [and it is] clear that ‘not all of the
Poulis factors need be satisfied in order to dismiss a complaint.’ Mindek, 964 F.2d at
1373.” Briscoe v. Klaus, 538 F.3d at 263. Therefore, the untested merits of the noncompliant plaintiff’s claims, standing alone, cannot prevent imposition of sanctions.
In any event, Bliss seems to have conceded the insufficiency of this amended
complaint by seeking leave to further amend this pleading. In light of this concession,
we find that Bliss has abandoned any claim that the amended complaint has arguable
legal merit and the remaining Poulis factors fully justify granting these motions to
dismiss or in the alternative for summary judgment.
In short, we find that an analysis of the Poulis factors calls for dismissal of this
amended complaint (Doc. 82.), and recommend that these motions to dismiss, or in the
alternative, for summary judgment be granted. (Docs. 84 and 85.) Since we have
granted Bliss a final leave to attempt to further amend his complaint, however, (Doc.
98.), any order granting these motions to dismiss, or in the alternative for summary
judgment, should be entered without prejudice to consideration of a timely filed
second amended complaint by Bliss.
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III.

Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the
defendants’ motions to dismiss, or in the alternative, for summary judgment (Docs.
84 and 85.), which have not been opposed by the plaintiff, be GRANTED and the
plaintiff’s amended complaint (Doc. 82.), be dismissed without prejudice to
consideration of a timely filed second amended complaint by Bliss.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings,
recommendations or report addressing a motion or matter described in 28
U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition
of a prisoner case or a habeas corpus petition within fourteen (14) days
after being served with a copy thereof. Such party shall file with the
clerk of court, and serve on the magistrate judge and all parties, written
objections which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the
basis for such objections. The briefing requirements set forth in Local
Rule 72.2 shall apply. A judge shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. The judge, however, need conduct a new hearing only
in his or her discretion or where required by law, and may consider the
record developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.

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Submitted this 28th day of September 2015.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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