Goenaga v. MacDonald et al
Filing
61
MEMORANDUM (Order to follow as separate docket entry)Therefore, all claims against Defendant DeRose are dismissed, Plaintiffs Fourteenth Amendment Due Process claim is dismissed, Plaintiffs Eighth Amendment Deliberate Indifference claim related to di abetic food trays is dismissed, and leave to amend is denied. Further, based on Plaintiffs failure to respond to the Order to Show Cause (Doc. 57), all claims against Defendants Lexlucski and MacDonald are dismissed. An appropriate Order is filed simultaneously with this action.Signed by Honorable Richard P. Conaboy on 3/30/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
OCTAVIO GOENAGA,
:
:CIVIL ACTION NO. 3:14-CV-2496
Plaintiff,
:
:(JUDGE CONABOY)
v.
:(Magistrate Judge Mehalchick)
:
C.O. STEVE MACDONALD, et al., :
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
Here the Court considers Magistrate Judge Karoline
Mehalchick’s Report and Recommendation (Doc. 58) concerning
Defendant Correctional Officer (“C/O”) Clark’s Motion to Dismiss
(Doc. 48).
Magistrate Judge Mehalchick concludes that Plaintiff,
who was an inmate at the Dauphin County Prison during the relevant
time period and is now incarcerated at FCI-Beckley in West
Virginia, has adequately pled Eighth Amendment claims against
Defendant Lexlucski for excessive force and Defendants MacDonald
and Clark for failure to intervene but has failed to state a claim
on other matters alleged.
(Doc. 58 at 18.)
Therefore, she
recommends that the motion be granted in part and denied part.
(Id.)
Defendant Clark objects to the Report and Recommendation on
the basis that Plaintiff cannot seek damages on his excessive force
claim because he has not pled more-than-de-minimis physical injury.
(Docs. 59, 60.)
Plaintiff did not respond to Defendant’s objection
and the time for doing so has passed.
Therefore, this matter is
ripe for disposition.
I. Background
Because Defendant does not object to the background
information contained in the Report and Recommendation, the Court
adopts the facts as set out by Magistrate Judge Mehalchick.
The facts as alleged by Goenaga are as
follows: Around 2:45 a.m. on September 12,
2014, Lt. Lexlucski was summoned in response
to an incident in Goenaga’s cell. (Doc. 39,
at 2). Lt. Lexlucski called Sgt. Parson to
take Goenaga to medical, whose knee had
“popped out of place.” (Doc. 39, at 3).
Following treatment, which did not include
pain medication, Goenaga was sent back to his
cell. (Doc. 39, at 3). Goenaga returned to
medical around 3:40 a.m. for regular insulin,
after which he was handcuffed for
transportation to the Special Housing Unit.
(Doc. 39, at 3).
Due to Goenaga’s injured knee, Sgt.
Parson told C/O’s MacDonald and Clark to use
a wheelchair for transportation. (Doc. 39,
at 3). They refused, due to frustrations
with the timing and forced Goenaga to walk on
his injured knee. (Doc. 39, at 3). When
Goenaga could not keep up, he was dragged.
(Doc. 39, at 4). Upon the command of Lt.
Lexlucski, C/O’s dropped Goenaga to the
ground, placed their knees in his back, and
sprayed mace in Goenaga’s face. (Doc. 39, at
4-5). Goenaga also states the officers
slapped him in the back of the head. (Doc.
39, at 5). Goenaga remained in Special
Housing for 15 days prior to his return to
general population (Doc. 39, at 6).
(Doc. 58 at 1-2.)
Plaintiff’s Amended Complaint clarifies that it
was Defendant Lexlucski who maced him twice while Defendants
2
MacDonald and Clark held him down and failed to intervene.
39 at 4-5.)
(Doc.
Plaintiff also states that he was making no attempts
to resist commands and being maced prevented him from breathing.
(Id.)
He says that he was maced the second time after he “began to
beg the lieutenant to please stop hurting him because he wasn’t
resisting and asked the lieutenant why he was macing him with
pepper spray.”
(Id. at 5.)
Plaintiff adds that Defendant Clark
was then “told to get the black chair.
When he got back with the
black chair plaintiff was strapped into the chair for no reason and
removed from population.”
(Id.)
When he was in the elevator
strapped into the chair, Plaintiff states that “he was slapped
several times in the head for waking them up from their rest time.”
(Id.)
The Report and Recommendation sets out the following
procedural background:
Goenaga filed suit again C/O’s MacDonald
and Clark, as well as Lt. Lexlucski and
Dauphin County Prison Warden Dominic DeRose.
(Doc. 1). Over two years later, only
Defendants DeRose and Clark have been served.
Defendant DeRose filed a motion to dismiss on
April 7, 2015. (Doc. 18; Doc. 22). The
Court granted in part and denied in part
DeRose’s motion. (Doc. 26, at 20). The
Court found Goenaga adequately pled [] Eighth
Amendment excessive force claims against
Defendant Lexlucski and Eighth Amendment
failure-to-intervene claims against Defendant
MacDonald. (Doc. 26, at 20). The Court
recommended dismissal of: Defendant DeRose
for lack of personal involvement (Doc. 26, at
9); claims of deliberate indifference related
to allegedly inadequate dietary provisions
3
(Doc. 26, at 11); and claims grounded in
Goenaga’s placement in the Special Housing
Unit (Doc. 26, at 13). The Court declined
dismissal on the grounds that Goenaga failed
to exhaust and that the Defendants were
entitled to qualified immunity as they did
not violate any constitutional rights. (Doc.
26, at 8; 17). Following issuance of the
Order accompanying these holdings, Goenaga
filed an amended complaint. (Doc. 39).
Defendant Clark returned waiver of
service on August 4, 2016, filing the instant
motion to dismiss on August 26, 2016. (Doc.
46; Doc. 48). Defendant Clark asserts
Goenaga’s complaint: (1) does not meet the
pleading standards of Rule 8; (2) alleged
only de minimis physical injuries; (3) does
not allege personal involvement to all
Defendants; (4) does not allege deliberate
indifference; (5) does not establish any
Constitutional violation by Goenaga’s
placement in prison; (6) does not establish
supervisory liability; (7) does not show the
Defendants violated Goenaga’s rights; (8)
fails for Goenaga’s admitted failure to
exhaust; and (9) that exhaustion is not
excused by any imminent danger. (Doc. 51).
Defendant Clark filed his brief in
support on September 16, 2016. (Doc. 51).
Having received no brief in opposition, the
Court entered an Order extending the deadline
for Goenaga’s opposition to November 8, 2016.
(Doc. 52). On November 10, 2016, Goenaga
moved for another extension and to obtain
copies of the Defendant’s motion. (Doc. 53).
The Court granted Goenaga’s motion, extending
the deadline for a brief in opposition to
December 2, 2016. (Doc. 54). On December 6,
2016, Goenaga informed the Court that he had
not received copies of the motion. (Doc.
55). In response, the Court extended the
deadline again to January 31, 2017. (Doc.
56). This deadline passed without
communication from Goenaga. Accordingly, per
the terms of the Order, the Court considers
the motion to dismiss unopposed and therefor
4
ripe for review.
(Doc. 58 at 2-3.)
II. Standard of Review
A.
Report and Recommendation
When a magistrate judge makes a finding or ruling on a motion
or issue, his determination should become that of the court unless
objections are filed.
(1985).
See Thomas v. Arn, 474 U.S. 140, 150-53
When objections are filed to a magistrate judge’s Report
and Recommendation, the district judge makes a de novo review of
those portions of the report or specified proposed findings or
recommendations to which objection is made.
28 U.S.C. § 636(b)(1);
Cippolone v. Liggett Group, Inc., 822 F.2d 335, 340 (3d Cir. 1987),
cert. denied, 484 U.S. 976 (1987).
To warrant de novo review, the
objections must be both timely and specific.
F.2d 5, 6-7 (3d Cir. 1984).
Goney v. Clark, 749
The court may accept, reject or
modify, in whole or in part, the findings made by the magistrate
judge.
28 U.S.C. § 636(b)(1).
are reviewed for clear error.
Uncontested portions of the report
Cruz v. Chater, 990 F. Supp. 375,
376-77 (M.D. Pa. 1998).
B.
Motion to Dismiss
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim that
is plausible on its face.’
A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw
5
the reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting and citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
556 (2007)).
Pursuant to Twombly and Iqbal, the Court of Appeals for the
Third Circuit set out three steps required of a court reviewing the
sufficiency of a claim in Connelly v. Lane Constr. Corp., 809 F.3d
780, 787 (3d Cir. 2016).
First, it must “tak[e] note of the elements
[the] plaintiff must plead to state a claim.”
Iqbal, 556 U.S. at 675, 129 S.Ct. 1937.
Second, it should identify allegations that,
“because they are no more than conclusions,
are not entitled to the assumptions of
truth.” Id. at 679, 129 S.Ct. 1937. See
also Burtch v. Milberg Factors, Inc., 662
F.3d 212, 224 (3d Cir. 2011) (“Mere
restatements of the elements of a claim are
not entitled to the assumption of truth.”
(citation and editorial remarks omitted)).
Finally, “[w]hen there are well-pleaded
factual allegations, [the] court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at
679, 129 S.Ct. 1937.
809 F.3d at 787.
Importantly, a plaintiff is not required to
establish all elements of a claim–-“the post-Twombly pleading
standard ‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the necessary
element[s].’”
Connelly, 809 F.3d at 789 (quoting Twombly, 550 U.S.
at 556); see also Phillips v. City of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008).
6
Pro se filings are to be liberally construed.
Gamble, 429 U.S. 97, 106 (1976).
Estelle v.
In Haines v. Kerner, 404 U.S.
519, 520 (1972), the Supreme Court explained that a pro se
complaint, “however inartfully pleaded,” must be held to “less
stringent standards than formal pleadings drafted by lawyers.”
However, a pro se complaint must still meet Iqbal’s plausibility
standard.
Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015).
Finally, the district court must extend the plaintiff an
opportunity to amend before dismissing a complaint unless amendment
would be inequitable or futile.
See Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
III. Discussion
A. Defendant’s Objection
As noted above, Defendant Clark objects to the Report and
Recommendation on the basis that Plaintiff cannot seek damages on
his excessive force claim because he has not pled more-than-deminimis physical injury.
(Docs. 59, 60.)
On this basis, he
asserts that the case should be dismissed with prejudice.
(Id.)
The Court concludes Defendant’s objection is without merit.
Defendant’s objection concerning Plaintiff’s extent-of-injury
allegations points to one factor of many that are to be considered
when determining the viability of an excessive force claim.
As
recently summarized by the Third Circuit Court of Appeals in
Robinson v. Danberg, No. 15-3040, —--F. App’x—--, 2016 WL 7364148
7
(3d Cir. Dec. 19, 2016) (not precedential),
post-conviction excessive force claims are
governed by the Eighth Amendment, which
protects convicted prisoners from cruel and
unusual punishment. Force amounts to cruel
and unusual punishment when it is applied
“maliciously and sadistically for the very
purpose of causing harm” instead of “in a
good faith effort to maintain or restore
discipline.” Hudson v. McMillian, 503 U.S.
1, 6 (1992) (quoting Whitley v. Albers, 475
U.S. 312, 321-21 (1986)). . . . [S]everal
factors should be considered: “[1] the need
for the application of force, [2] the
relationship between the need and the amount
of force that was used, [3] . . . the extent
of the injury inflicted, . . . and [5] any
efforts made to temper the severity of a
forceful response.” Whitley, 475 U.S. at 321
(internal quotation mark omitted) (quoting
Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir. 1973) (Friendly, J.). The extent of an
injury “may suggest ‘whether the use of force
could plausibly have been thought necessary’
in a particular situation,” but “[t]he
absence of serious injury” while “relevant to
the Eighth Amendment inquiry . . . does not
end it.” Hudson, 503 U.S. at 7 (quoting
Whitley, 475 U.S. at 321).
2016 WL 7364148, at *3.
Concerning the extent of injury, Robinson also noted that
“while . . . ‘the degree of injury is relevant[,] . . . there is no
fixed quantum of injury that a prisoner must prove that he suffered
through objective or independent evidence in order to state a claim
for . . . excessive force.’”
2016 WL 7364148, at *2 (quoting
Brooks v. Kyler, 204 F.3d 102, 104 (3d Cir. 2000)).
As explained
by the Supreme Court in Wilkins v. Gaddy, 559 U.S. 34 (2010), when
a prisoner alleges that prison officers used excessive force
8
against the prisoner the “‘core judicial inquiry’ is not whether a
certain quantum of injury was sustained, but rather “whether force
was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
37 (quoting Hudson, 503 U.S. at 7).
Id. at
Importantly, “‘[w]hen prison
officials maliciously and sadistically use force to cause harm,’ .
. . ‘contemporary standards of decency always are violated . . .
whether or not significant injury is evident.
Otherwise, the
Eighth Amendment would permit any physical punishment, no matter
how diabolic or inhuman, inflicting less than some arbitrary
quantum of injury.’”
Wilkins, 559 U.S. at 37 (quoting Hudson, 503
U.S. at 9 (Blackmun, J., concurring in judgment)).
Wilkins
clarified that absence of serious injury is not irrelevant to an
Eighth Amendment inquiry as it is a “factor that may suggest
whether the use of force could plausibly have been thought
necessary in a particular situation[, or] may . . . provide some
indication of the amount of force that was applied.”
Id. at 37
(internal quotations and citations omitted).
As we stated in Hudson, not “every malevolent
touch by a prison guard gives rise to a
federal cause of action.” 503 U.S. at 9, 112
S.Ct. 995. “The Eighth Amendment’s
prohibition of ‘cruel and unusual’
punishments necessarily excludes from
constitutional recognition de minimis uses of
physical force, provided that the use of
force is not of a sort repugnant to the
conscience of mankind.” Ibid. (some internal
quotation marks omitted). An inmate who
complains of a “push or shove” that causes no
9
discernible injury almost certainly fails to
state a valid excessive force claim. Ibid.
(quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973)).
Injury and force however, are only
imperfectly correlated, and it is the latter
that ultimately counts.
Wilkins, 559 U.S. at 37-38.
As stated in Smith v. Mensinger, 293
F.3d 641, 648 (3d Cir. 2002), “the Eighth Amendment analysis must
be driven by the extent of the force and the circumstances in which
it is applied; not by the resulting injuries.”
Because injuries
are only one of several factors a court must consider to answer the
question of whether the force was used maliciously or sadistically
to cause harm, “de minimis injuries, do not necessarily establish
de minimis force.”
Id. at 649.
Liability can arise for an Eighth Amendment excessive force
violation if a defendant does not directly inflict the force--a
failure to intervene in another’s use of excessive force can give
rise to such liability.
See, e.g., Smith, 293 F.3d at 650.
A
correctional officer has a duty to take reasonable steps to protect
an inmate from another officer’s use of excessive force, even if
the excessive force is employed by a superior.
Id.
A correctional
officer’s failure to intervene in the use of excessive force can be
the basis of liability for an Eighth Amendment violation under §
1983 if the officer had a reasonable opportunity to intervene and
simply refused to do so.
Id.
“The restriction on cruel and
unusual punishment contained in the Eighth Amendment reaches non10
intervention just as readily as it reaches the more demonstrable
brutality of those who unjustifiably and excessively employ fists,
boots, or clubs.”
Id. at 251.
As to the specifics of the force allegedly used in this case,
some courts have determined that the use of mace did not support an
excessive force claim where it was used in proportion to what was
needed in a given situation.
See, e.g., Dickens v. Danberg, Civ.
No. 10-786-LPS, 2012 WL 2089516, at *8 (D. Del. June 8, 2012).
However, it has long been recognized that “[i]t is a violation of
the Eighth Amendment for prison officials to use mace or other
chemical agents in quantities greater than necessary or for the
sole purpose of punishment or the infliction of pain.”
Soto v.
Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984); see also Foulk v.
Charrier, 262 F.3d 687, 701-02 (8th Cir. 2001) (stating application
of pepper spray when inmate being compliant can constitute Eighth
Amendment violation).
Robinson concluded that the use of mace on a
prisoner who was locked in his cell and posed no imminent threat to
staff or inmates at the time he was allegedly maced would allow a
reasonable factfinder to conclude that the use of force was more
than de minimis and a violation of the prisoner’s Eighth Amendment
rights.
2016 WL 7364148, at *4.
Applying the principle that “the application of force by
prison guards exceeding that which is reasonable and necessary
under the circumstances, may be actionable,” the Third Circuit
11
Court of Appeals found that the use of a restraint chair can give
rise to an Eighth Amendment claim.
Young v. Martin, 801 F.3d 172,
180-82 (3d Cir. 2015) (internal quotation omitted) (citing inter
alia Hope v. Pelzer, 536 U.S. 730, 738 (2002)).
Young also cited
Giles v. Kearney, 571 F.3d 318, 327 (3d Cir. 2009), for the
proposition that striking and kicking a subdued inmate was not
reasonable or necessary under established law.
801 F.3d at 181.
Dragging an inmate who was unable to walk because of an injured
knee could be considered “‘unncecessary and wanton infliction of
pain’” in certain circumstances, particularly when considered in
conjunction with other allegations of the use of unnecessary force.
See, e.g., Almuhsin v. Warden of Dauphin County Prison, No. 1:16CV-365, 2016 WL 1076835, at *4 (M.D. Pa. Mar. 18, 2016) (quoting
Whitley, 475 U.S. at 319).
As set out above, Plaintiff’s allegations include the
following: he was dragged to the SHU and was forced to try to walk
on his injured knee rather than being transported in a wheelchair
as was originally directed; he was held on the ground and maced
twice; he was placed in a restraint chair; and he was slapped in
the head several times.
(Doc. 39 at 3-5.)
Plaintiff alleges that
he was not resisting any order or directive in the course of the
events described.
(Id.)
Plaintiff states that Defendants
Lexlucski, Clark, and MacDonald either ordered, inflicted, or
failed to intervene in the alleged wrongdoing.
12
(Id.)
The review of relevant caselaw clearly indicates that
Defendant’s argument that Plaintiff’s Eighth Amendment excessive
force claim fails because he did not allege “a more-than-de minimis
physical injury” (Doc. 60 at 4) is without merit.
Importantly,
Defendant does not engage in the contextual analysis required by
the Supreme Court and Third Circuit Court of Appeals when
considering an excessive force claim.
Defendant’s support for the
claimed error is thinly articulated but any inference that the
degree of harm alleged is a threshold requirement to pleading an
excessive force claim is contradicted by relevant precedent
reviewed above as is his inference that the use of mace, being
placed in a restraint chair, being slapped in the head, and being
dragged on an injured knee–-all allegedly without provocation–cannot support an Eighth Amendment claim.
Essentially, Defendant
extracts the “the extent of the injury inflicted,” factor, Whitley,
475 U.S. at 321, from the required analysis and gives it prime
consideration rather than the subsidiary importance stressed by the
Supreme Court and Third Circuit Court of Appeals.
See, e.g.,
Wilkins, 559 U.S. at 37-38; Hudson, 503 U.S. at 7; Smith, 293 F.3d
at 648-49.
Defendant’s citations to cases where “similar claims of
temporary injuries” were found to be de minimis (Doc. 60 at 4-5),
are unavailing in that they are not presented as part of the
required fact-specific, multi-factored analysis, and Defendant does
not cite a single case where the force allegedly used against
13
Plaintiff was categorically found to result in no more than de
minimis injury which could not support an excessive force claim.
As cautioned by Smith, de minimis injury and de minimis force are
not to be conflated--the excessive force analysis must be driven by
the latter.
293 F.3d at 648-49.
Considered in the relevant context, Plaintiff’s claims are
sufficient to satisfy the plausibility standard needed to survive a
motion to dismiss.
Assumed to be true, Plaintiff’s allegations
that, without provocation or wrongdoing on his part, he was
dragged, maced, put in a restraint chair, and slapped (Doc. 39 at
3-5) allow the Court to draw the reasonable inference that
Defendants Lexlucski, Clark, and MacDonald are liable for the
misconduct alleged.
See Iqbal, 556 U.S. at 678.
The alleged force
exerted without provocation at a time when there was no apparent
need to maintain or restore discipline, if proven, would support
that the force was applied “maliciously and sadistically for the
very purpose of causing harm.”
Hudson, 503 U.S. at 8.
As noted
above, a plaintiff is not required at this stage of the proceedings
to establish all elements of a claim–-“the post-Twombly pleading
standard ‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the necessary
element[s].’”
Connelly, 809 F.3d at 789 (quoting Twombly, 550 U.S.
at 556); see also Phillips v. City of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008).
In his Amended Complaint, Plaintiff states that
14
alleged wrongdoing was captured on prison video cameras, two
witnesses were willing to testify, and other inmates who were in
the D-Block day room witnessed the whole incident.
10.)
(Doc. 39 at 9-
Though not required, the articulation of specifically
anticipated discovery evidence reinforces the conclusion that the
facts alleged in the Amended Complaint (Doc. 39) raise a reasonable
expectation that discovery will reveal the necessary elements of
Plaintiff’s excessive force/failure-to-intervene claim.
Therefore,
Defendant’s motion to dismiss this claim must be denied.
B. Plain Error Review
The Court finds no plain error in the uncontested portions of
the Report and Recommendation.
Therefore, the Court adopts
Magistrate Judge Mehalchick’s recommendations that all claims
against Defendant DeRose be dismissed for lack of personal
involvement or supervisory liability, his Fourteenth Amendment Due
Process claim arising from placement in restrictive housing be
dismissed for failure to state a claim upon which relief can be
granted, his Eighth Amendment Deliberate Indifference claim arising
from the alleged denial of appropriate diabetic food trays be
dismissed for failure to state a claim upon which relief can be
granted, and leave to amend be denied.
(Doc. 58 at 18.)
The Court
also concurs with Magistrate Judge Mehalchick’s conclusion that,
because Defendant did not offer any argument countering Plaintiff’s
claims that he did not exhaust administrative remedies because of
15
fear of reprisal, Defendant’s Motion to Dismiss (Doc. 48) should be
denied with respect to the issue of exhaustion.
(Doc. 58 at 8.)
The denial is without prejudice to raising the defense after the
close of discovery.
(Id.)
C. Defendants Lexlucski and MacDonald
In her Report and Recommendation, Magistrate Judge Mehalchick
noted that an Order to Show Cause was being filed concurrently.
(Doc. 58 at 18 n.2.)
In the Order to Show Cause, Plaintiff was to
show cause why Defendants Lexluski and MacDonald had not been
served and failure to do so on or before March 7, 2017, could
result in the action being dismissed.
(Doc. 57.)
The time for
Plaintiff to respond to the Order to Show Cause has elapsed and
Plaintiff has failed to comply with the Order.
At this juncture, Plaintiff has failed to provide updated
addresses after notice that service was not executed on Defendants
Lexlucski and MacDonald (Docs. 43, 44), these Defendants have not
been served pursuant to Rule 4 of the Federal Rules of Civil
Procedure, and Plaintiff has failed to respond to the Court’s Order
to Show Cause regarding his failure to serve these Defendants (Doc.
57).
The Complaint having been filed over two years ago (Doc. 1),
and the Amended Complaint having been filed over ten months ago
(Doc. 39), dismissal of the unserved Defendants for failure to
prosecute is warranted.
“The authority of a court to dismiss sua sponte for lack of
16
prosecution has generally been considered an ‘inherent power,’
governed not by rule or statue but by the control necessarily
vested in courts to manage their own affairs as to achieve the
orderly and expeditious disposition of cases.”
Co., 370 U.S. 626, 631 (1962).
Link v. Wabash R.
However, before such dismissal is
ordered, the Court must generally review the factors set out in
Poulis v. State Farm Fire & Casualty Company, 747 F.2d 863, 868 (3d
Cir. 1984).1
The Poulis factors are (1) the extent of the party's
personal responsibility; (2) prejudice to the adversary; (3) any
history of dilatoriness; (4) whether the party acted willfully or
in bad faith; (5) the availability of alternative sanctions; and
(6) the meritoriousness of the claim or defense.
at 868.
Poulis, 747 F.2d
Not all factors must weight against a plaintiff to warrant
dismissal, but the District Court should address each factor.
Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988); United States v.
$8,221,877.16 in U.S. Currency, 330 F.3d 141, 162 (3d Cir. 2003).
Here Plaintiff is responsible for providing service
information and has been informed of this responsibility on several
occasions.
(See, e.g., Docs. 9, 16, 28.)
The piecemeal litigation
caused by failure to serve named Defendants is prejudicial to the
1
“Ordinarily a District Court is required to consider and
balance [the Poulis factors] when deciding, sua sponte, to use
dismissal as a sanction. When a litigant’s conduct makes
adjudication of the case impossible, however, such balancing under
Poulis is unnecessary.” Iseley v. Bitner, 216 F. App’x 252, 255
(3d Cir. 2007) (not precedential) (citing Guyer v. Beard, 907 F.2d
1424, 1429-30 (3d Cir. 1990)).
17
adversary.
A review of the docket shows that Plaintiff has a
history of dilatoriness in service matters as well as timely filing
other documents.
(See, e.g., 33, 37, 54, 56.)
Although some
delays have been attributable to mail difficulties, most have not
(see id.)–-Plaintiff’s failure to file requested documents and
failure to comply with Court Orders therefore must be deemed
willful in most instances.
Having previously warned Plaintiff
about the potential consequences of failing to comply with Court
Orders (Docs. 28, 57), Plaintiff’s continuing noncompliance does
not provide the availability of alternative sanctions.
As
discussed above, the Court has concluded that Plaintiff’s excessive
force/failure-to-intervene claims against Defendant Clark and the
unserved Defendants have been deemed meritorious enough to survive
the Motion to Dismiss.
However, they cannot be held answerable for
claims against them when they have not been served.
On balance, five of the six Poulis factors weigh in favor of
dismissal.
With no reason provided for his failure to respond to
the Order to Show Cause (Doc. 57), dismissal of all claims against
Defendants Lexlucski and MacDonald is appropriate.
Magistrate
Judge Mehalchick’s recommended disposition is modified to reflect
this dismissal.
IV. Conclusion
For the reasons discussed above, Magistrate Judge Mehalchick’s
Report and Recommendation (Doc. 58) is adopted as modified.
18
The
pending Motion to Dismiss (Doc. 48) is granted in part and denied
in part.
The motion is denied with regard to Defendant’s assertion
that dismissal is warranted for failure to comply with the PLRA’s
exhaustion requirement (Doc. 51 at 10 (citing 42 U.S.C. §
1997e(a)).)
The Motion is denied insofar as Plaintiff’s Eighth
Amendment claim against Defendant Clark regarding the use of
excessive force/failure-to-intervene goes forward.2
granted in all other respects.
The motion is
Therefore, all claims against
Defendant DeRose are dismissed, Plaintiff’s Fourteenth Amendment
Due Process claim is dismissed, Plaintiff’s Eighth Amendment
Deliberate Indifference claim related to diabetic food trays is
dismissed, and leave to amend is denied.
Further, based on
Plaintiff’s failure to respond to the Order to Show Cause (Doc.
57), all claims against Defendants Lexlucski and MacDonald are
dismissed.
An appropriate Order is filed simultaneously with this
action.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: March 30, 2017
2
Magistrate Judge Mehalchick recommends that these claims
also go forward as to Defendants Lexlucski and MacDonald. (Doc. 58
at 18.) However, because they are dismissed from the action based
on Plaintiff’s failure to respond to the Order to Show Cause (Doc.
57), the Eighth Amendment claims go forward only as to Defendant
Clark. This change is the modification noted in the text.
19
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