Spellman v. Beard et al

Filing 19

MEMORANDUM AND ORDER DISMISSING CASE: Defendants' motion to dismiss plaintiff's amended compalitnis granted. 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 5/13/11. (bw, )

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
LONNIE SPELLMAN,
Plaintiff
vs.
JEFFREY BEARD, et al.,
Defendants

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No. 4:CV-10-2334
(Complaint Filed 12/03/10)
(Judge Muir)

MEMORANDUM AND ORDER
May 13, 2011
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Plaintiff, an inmate confined in the State Correctional
Institution, Frackville, Pennsylvania, filed this civil rights
action pursuant to 42 U.S.C. § 1983.

The named defendants are

Secretary Jeffrey Beard, Robert Collins, Michael Lorady, George
Evans, Michael Wnerowicz, Thomas Derfler, Anthony Kovalchik,
Peter Damiter, Joseph Lukashewski, Michael Thiroway, Ralph
Johnson, Kenneth Stutzman, Joanne Miranda, and Victor Mirarchi.
Plaintiff complains that he is a non-smoker and that he would
prefer not to share his cell with someone who smokes. (Doc. No.
1, complaint). On March 14, 2011 plaintiff filed an amended
complaint.

(Doc. 13).

Presently pending before the Court is defendants’ motion
to dismiss the amended complaint. (See Doc. 11).

Previously,

by order dated April, 21, 2011, this Court directed Plaintiff
to file a brief in opposition to Defendants' motions to dismiss
on

or

before

May

11,

2011.

(See

Doc.

18).

The

Order

forewarned Plaintiff that if he failed to file a brief within
the required time, the motion would be deemed unopposed and
granted without a merits analysis.
Though the deadline for filing an opposing brief has
passed, plaintiff has neither filed a brief in opposition to
defendants’ motion to dismiss nor has he requested an extension
of time in which to do so.

Consequently, the court will grant

Defendants' motion to dismiss without a merits analysis.

Cf.

Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)
(dismissal without merits analysis improper when based solely
on noncompliance with local rule requiring plaintiff to respond

2

to motion to dismiss).1

An appropriate Order accompanies this

Memorandum Opinion.

s/Malcolm Muir
MUIR
United States District Judge

1.In Stackhouse, the Third Circuit limited its holding to
dismissals used as sanctions for failure to comply with the
local rule. 951 F.2d at 30. Moreover, the court suggested
that dismissal may be proper where, as in the instant case, a
party fails to comply with the local rule after a specific
direction to comply by the court. Id

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
LONNIE SPELLMAN,

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Plaintiff
vs.
JEFFREY BEARD, et al.,
Defendants

No. 4:CV-10-2334
(Complaint Filed 12/03/10)
(Judge Muir)

ORDER
May 13, 2011
For the reasons set forth in the accompanying Memorandum,
IT IS HEREBY ORDERED THAT:
1.

Defendants' motion to dismiss plaintiff’s
amended complaint (Doc. 11) is GRANTED.

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