Gessner v. Smith et al

Filing 73

MEMORANDUM OPINION re 69 MOTION for Summary Judgment filed by Gary Anthony Fioretti, Nicholas, Smith, John E. Wetzel, McGinley. Signed by Magistrate Judge Martin C. Carlson on March 10, 2016. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMANDA GESSNER,
Plaintiff
v.

SUP’T. SMITH, et al.,
Defendants

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Civil No. 3:14-CV-2216

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Statement of Facts and of the Case

Amanda Gessner, the pro se plaintiff, is a state inmate. Gessner has brought this
action alleging that she was sexually harassed and abused by a correctional officer and
that correctional supervisors permitted this conduct. (Doc. 1.) The defendants have
now filed a summary judgment motion in this case, citing a profound procedural
failure by the plaintiff, a failure to exhaust administrative remedies within the prison
system before filing this complaint. Such administrative exhaustion is required by law
before an inmate may proceed into federal court.
Having been cited by the defendants for this profound procedural shortcoming,
the plaintiff has compounded this error by failing to respond to this summary judgment
motion. Thus, a plaintiff who is alleged to have ignored one set of important

procedural rules, has now discounted a second set of cardinal procedural benchmarks.
In this face of this cascading array of procedural failures, we are compelled to dismiss
this action.
This pro se civil rights action was initially brought by the plaintiff, a state
prisoner, through the filing of a complaint on November 19, 2014. (Doc. 1.) On
December 11, 2015, the corrections defendants filed a motion for summary judgment,
in this case. (Doc. 69.) This motion raised, inter alia, a straightforward legal claim,
arguing that the plaintiff had failed to exhaust her administrative remedies within the
prison before filing this lawsuit, something that prisoner plaintiffs are required by law
to do as a prerequisite to seeking relief in federal court. See 42 U.S.C. §1997e(a). The
plaintiff did not respond to this motion. Accordingly, on January 25, 2016, we entered
an order directing Gessner to respond to this motion on or before February 8, 2016.
(Doc. 72.) That order also warned Gessner in clear and precise terms that dismissal
of this lawsuit was a potential consequence for any failure to respond to this motion.
(Id.) Despite this explicit warning, the response deadline has passed without any
action by Gessner to respond to this legal defense. Therefore, in the absence of any
timely response by the plaintiff, we will deem the motion to dismiss to be ripe for
resolution.
For the reasons set forth below, this summary judgment motion will be granted.
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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 is deemed to
concur in this summary judgment motion, 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,
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
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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 orders, 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,
“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

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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
repeatedly failed to comply with Local Rule 7.6 by filing a timely response to the
summary judgment motion. These failures now compel us to apply the sanction called
for under Rule 7.6 and deem the plaintiff to not oppose this summary judgment
motion.
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.
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:

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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 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
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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:
“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
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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).
The third Poulis factor-the history of dilatoriness on the plaintiff’s part–also
suggests 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
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orders.’ Adams, 29 F.3d at 874.” Briscoe v. Klaus, 538 F.3d at 260-61 (some
citations omitted). Here, the plaintiff has allegedly failed to exhaust her administrative
remedies before filing this lawsuit and now has failed to respond to a defense motion
which highlights this earlier procedural failure. The plaintiff has also failed to timely
file pleadings, and has not complied with orders of the Court. Thus, the plaintiff’s
conduct has begun to display “[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
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.

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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 her 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 her 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 case, since the plaintiff is now wholly noncompliant with her obligations as a litigant. The plaintiff cannot refuse to address the
merits of her claims, and then assert the untested merits of these claims as grounds for
denying a motion to sanction her. Furthermore, it is well-settled that “ ‘no single
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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, as discussed below, the plaintiff’s claims clearly fail on their
merits, yet another factor which favors dismissal of this action. The legal flaws
inherent in these claims are discussed separately below.
C.

The Plaintiff’s Claims Fail on Their Merits

As we have previously observed, this case presents an extraordinary
circumstance. The plaintiff, a state prisoner, has sued her jailers, alleging that they
have violated her constitutional rights. However, it appears that the plaintiff has
indulged in a profound procedural failure, a failure to exhaust administrative remedies
within the prison system before filing this complaint. Having been cited by the
defendants for this profound procedural shortcoming, the plaintiff has compounded
this error by failing to respond to the defendants’ summary judgment motion. Thus,
a plaintiff who is alleged to have ignored one set of important procedural rules, has
now discounted a second set of procedural benchmarks.

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In this case the plaintiff’s failure to timely pursue these administrative
remedies–which is undisputed on this record– has substantive significance for the
plaintiff since the Prison Litigation Reform Act provides that “[n]o action shall be
brought with respect to prison conditions under . . . [42 U.S.C. § 1983], or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). Section 1997e’s exhaustion requirement applies to a wide-range of inmate
complaints, including damages complaints like those made here grounded in alleged
violations of the Eighth Amendment. See Spruill v. Gillis, 372 F.3d 218 (3d Cir.
2004); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000). While this exhaustion
requirement is not a jurisdictional bar to litigation, this requirement is strictly enforced
by the courts. This rigorous enforcement is mandated by a fundamental recognition
that § 1997e’s exhaustion requirement promotes important public policies. As the
United States Court of Appeals for the Third Circuit has noted:
Courts have recognized myriad policy considerations in favor of
exhaustion requirements. They include (1) avoiding premature
interruption of the administrative process and giving the agency a chance
to discover and correct its own errors; (2) conserving scarce judicial
resources, since the complaining party may be successful in vindicating
his rights in the administrative process and the courts may never have to
intervene; and (3) improving the efficacy of the administrative process.
Each of these policies, which Congress seems to have had in mind in
enacting the PLRA, is advanced by the across-the-board, mandatory
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exhaustion requirement in § 1997e(a). ... [A] a comprehensive
exhaustion requirement better serves the policy of granting an agency the
“opportunity to correct its own mistakes with respect to the programs it
administers before it is haled into federal court.” Moreover, “even if the
complaining prisoner seeks only money damages, the prisoner may be
successful in having the [prison] halt the infringing practice” or fashion
some other remedy, such as returning personal property, reforming
personal property policies, firing an abusive prison guard, or creating a
better screening process for hiring such guards. And when a prisoner
obtains some measure of affirmative relief, he may elect not to pursue his
claim for damages. In either case, local actors are given the chance to
address local problems, and at the very least, the time frame for the
prisoner's damages is frozen or the isolated acts of abuse are prevented
from recurring. An across-the-board exhaustion requirement also
promotes judicial efficiency. . . . Moreover, even if only a small
percentage of cases settle, the federal courts are saved the time normally
spent hearing such actions and multiple appeals thereto. . . . In cases in
which inmate-plaintiffs exhaust their remedies in the administrative
process and continue to pursue their claims in federal court, there is still
much to be gained. The administrative process can serve to create a
record for subsequent proceedings, it can be used to help focus and
clarify poorly pled or confusing claims, and it forces the prison to justify
or explain its internal procedures. All of these functions help courts
navigate the sea of prisoner litigation in a manner that affords a fair
hearing to all claims.
Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000)(citations omitted).
Because of the important policies fostered by this exhaustion requirement, it has been
held that there is no futility exception to § 1997e’s exhaustion requirement. Id.
Instead, courts have typically required across-the-board administrative exhaustion by
inmate plaintiffs who seek to pursue claims in federal court.

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Moreover, courts have also imposed a procedural default component on this
exhaustion requirement, holding that inmates must fully satisfy the administrative
requirements of the inmate grievance process before proceeding into federal court.
Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). Applying this procedural default
standard to § 1997e’s exhaustion requirement, courts have concluded that inmates who
fail to fully, or timely, complete the prison grievance process are barred from
subsequently litigating claims in federal court. See, e.g., Booth v. Churner, 206 F.3d
289 (3d Cir. 2000); Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008); Jetter v.
Beard, 183 F. App’x 178 (3d Cir. 2006).
This broad rule favoring full exhaustion admits of one, narrowly defined
exception. If the actions of prison officials directly caused the inmate’s procedural
default on a grievance, the inmate will not be held to strict compliance with this
exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
However, case law recognizes a clear “reluctance to invoke equitable reasons to
excuse [an inmate’s] failure to exhaust as the statute requires.” Davis v. Warman, 49
F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust will only be
excused “under certain limited circumstances”, Harris v. Armstrong, 149 F. App’x 58,
59 (3d Cir. 2005), and an inmate can defeat a claim of failure to exhaust only by
showing “[s]he was misled or that there was some extraordinary reason [s]he was
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prevented from complying with the statutory mandate.” Davis v. Warman, supra, 49
F. App’x at 368. See also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002)
(assuming that prisoner with failure to protect claim is entitled to rely on instruction
by prison officials to wait for outcome of internal security investigation before filing
grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (exhaustion
requirement met where Office of Professional Responsibility fully examined merits
of excessive force claim and uncontradicted correctional officers impeded filing of
grievance).
However, in the absence of competent proof that an inmate was misled by
corrections officials, or some other extraordinary circumstances, inmate requests to
excuse a failure to exhaust are frequently rebuffed by the courts. Thus, an inmate
cannot excuse a failure to timely comply with these grievance procedures by simply
claiming that her efforts constituted “substantial compliance” with this statutory
exhaustion requirement. Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005).
Nor can an inmate avoid this exhaustion requirement by merely alleging that the
Department of Corrections policies were not clearly explained to her. Davis v.
Warman, 49 F. App’x 365, 368 (3d Cir. 2002). Furthermore, an inmate’s confusion
regarding these grievances procedures does not, standing alone, excuse a failure to
exhaust. Casey v. Smith, 71 F. App’x 916 (3d Cir. 2003). Moreover, an inmate
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cannot cite to alleged staff impediments to grieving a matter as grounds for excusing
a failure to exhaust, if it also appears that the prisoner did not pursue a proper
grievance once those impediments were removed. Oliver v. Moore, 145 F. App’x 731
(3d Cir. 2005)(failure to exhaust not excused if, after staff allegedly ceased efforts to
impede grievance, prisoner failed to follow through on grievance).
Thus, in this setting, the Prison Litigation Reform Act requires that an inmate
fully exhaust her administrative remedies before proceeding into federal court, an
administrative exhaustion requirement which entails full compliance with grievance
procedures and timelines, as well as the basic requisite that the inmate identify those
against whom she has a grievance during the administrative process before she may
name these individuals as defendants in a federal lawsuit.
Judged against these benchmarks, this complaint fails since the defendants have
asserted, without contradiction by the plaintiff, that none of the matters set forth in the
complaint have been fully and properly exhausted within the prison grievance system.
This failure to exhaust is fatal to this case, and compels dismissal of this action. In
sum, this merits analysis reveals that this summary judgment motion has substantial
merit. Having concluded that this pro se complaint is flawed in a profound way, we
recognize that in civil rights cases pro se plaintiffs often should be afforded an
opportunity to amend a complaint before the complaint is dismissed in its entirety, see
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Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir.
2007), unless it is clear that granting further leave to amend would be futile, or result
in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, the
current complaint fails to state a viable civil rights cause of action, the factual and
legal grounds proffered in support of this complaint make it clear that the plaintiff has
no right to relief, and the plaintiff has declined to respond to court orders, or otherwise
litigate these claims. On these facts, we conclude that granting further leave to amend
would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004). Therefore, the defendants’ motion for summary judgment will be granted and
the complaint will be dismissed without further leave to amend.
An appropriate form of order follows.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated:

March 10, 2016

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