Melendez v. Jesse
Filing
18
MEMORANDUM AND ORDER # 2: Pursuant to Rule 41(b) of the Federal Rules of civil Procedure, plaintiff's complaint is dismissed for failure to prosecute and comply with a court order. The Clerk of Court shall close this case. Any appeal from this order will be deemed frivolous, without probable cause and not taken in good faith.Signed by Honorable Malcolm Muir on 5/11/11. (bw, )
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
GILBERTO MELENDEZ,
:
:
:
:
:
:
:
:
:
:
Plaintiff
vs.
JANE M. JESSE,
Defendant
No. 4:CV-10-2061
(Complaint Filed 10/05/10)
(Judge Muir)
MEMORANDUM AND ORDER #2 of
May 11, 2011
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Gilberto
Melendez,
an
inmate
confined
in
the
State
Correctional Institution, Dallas (“SCI-Dallas”), Pennsylvania,
filed the above captioned civil rights action pursuant to 42
U.S.C. § 1983.
Plaintiff seeks compensatory and punitive
damages for a claim of inadequate medical care. Specifically,
plaintiff states that he was taken “off [his] medication when
[he] was not supposed to be taken off of any medication for
major
depression
and
anxiety”
and
“by
not
having
[his]
medication it caused [him] to attempt suicide by banging [his]
head and cutting [himself] with a razor.” (Doc. 1, complaint).
The sole defendant is Jane Jesse, SCI-Dallas physician.
On March 16, 2011, the named defendant filed a motion to
dismiss or in the alternative, for summary judgment.
14).
(Doc.
Along with the motion, defendant filed a brief and
exhibits in support of same.
(Doc. 15).
Previously, by Order dated April 18, 2011, plaintiff was
specifically
directed
to
file
a
brief
defendants’ motion for summary judgment.
in
opposition
(Doc. 16).
to
The Order
forewarned plaintiff that if he failed to file a brief within
the required time, we would consider dismissing plaintiff's
complaint under the authority of Rule 41(b) for failure to
prosecute
and
comply
with
a
court
order.
Id.
Generally, a dispositive motion may not be granted merely
because it is unopposed.
However, when a plaintiff fails to
prosecute or comply with a court order, the court may dismiss
the action pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure.
(1962).
Link v. Wabash Railroad Co., 370 U.S. 626, 629
In Link, the Supreme Court stated:
The authority of a federal trial court to
dismiss
a
plaintiff's
action
with
prejudice because of his failure to
prosecute cannot seriously be doubted.
The power to invoke this sanction is
necessary in order to prevent undue
delays in disposition of pending cases
-2-
and to avoid congestion in the calendars
of the District Courts. The power is of
ancient origin, having its roots in
judgments of nonsuit and non prosequitur
entered at common law . . . .
It has
been expressly recognized in Federal Rule
of Civil Procedure 41(b) . . . .
Id. at 629-30.
The Court of Appeals for this circuit held in
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) that
a district court should not dismiss a civil rights complaint
brought by a former prisoner for failure to comply with a local
rule requiring a response to a dispositive motion without
examining the merits of the complaint.
However, the Court of
Appeals did not vitiate the Supreme Court's decision in Link,
Rule 41(b) of the Federal Rules of Civil Procedure or the
inherent power of the district court to impose the sanction of
dismissal for failing to comply with a court order.
the Court of Appeals specifically stated:
In reaching our result, we do not suggest
that the district court may never rely on
the local rule to treat a motion to
dismiss as unopposed and subject to
dismissal without a merits analysis.
There may be some cases where failure of
a party to oppose a motion will indicate
that the motion is in fact not opposed,
particularly if the party is represented
by an attorney and in that situation the
rule may be appropriately invoked. Nor
-3-
Instead,
do we suggest that if a party fails to
comply with the rule after a specific
direction to comply from the court, the
rule cannot be invoked.
Id. at 30 (emphasis added); see also Mindek v. Rigatti, 964
F.2d 1369, 1373 (3d Cir. 1992) ("Poulis did not provide a magic
formula whereby the decision to dismiss or not to dismiss a
plaintiff's complaint becomes a mechanical calculation . . .
[N]ot all of the Poulis factors1 need be satisfied in order to
dismiss a complaint.
Instead, the decision must be made in the
context of the district court's extended contact with the
litigant.
Ultimately, the decision to dismiss constitutes an
exercise of the district court judge's discretion and must be
given great deference by [the Court of Appeals].").
1.
The Court of Appeals in Poulis v. State Farm Fire and
Casualty Co., 747 F.2d 863 (3d Cir. 1984) identified six
factors that are appropriate to consider before dismissing a
case for the plaintiff's late filing of a pretrial
statement. The six factors are: (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 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.
-4-
Plaintiff was advised of the requirements of Local Rule
7.6 by the standard practice order issued in this case on
October 6, 2010,and specifically directed to comply with Local
Rule 7.6 by filing a brief in opposition.
(See Doc. 4).
The
Court finds that the dilatoriness of plaintiff outweighs any of
the other considerations set forth in Poulis.
The court will,
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure,
dismiss plaintiff's complaint both for failure to prosecute and
for failure to comply with a court order.
An appropriate Order accompanies this Memorandum Opinion.
s/Malcolm Muir
MUIR
United States District Judge
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
GILBERTO MELENDEZ,
:
:
:
:
:
:
:
:
:
:
Plaintiff
vs.
JANE M. JESSE,
Defendant
No. 4:CV-10-2061
(Complaint Filed 10/05/10)
(Judge Muir)
ORDER #2 of
May 11, 2011
For the reasons set forth in the accompanying Memorandum,
IT IS HEREBY ORDERED THAT:
1.
Pursuant
Rules of
complaint
prosecute
to Rule 41(b) of the Federal
Civil Procedure, plaintiff's
is DISMISSED for failure to
and comply with a court order.
2.
The Clerk of Court shall CLOSE this case.
3.
Any appeal from this order will be deemed
frivolous, without probable cause and not
taken in good faith.
s/Malcolm Muir
MUIR
United States District Judge
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