WINSTON v. BAUER et al

Filing 42

MEMORANDUM ORDER: AND NOW, to wit, this 30th Day of November, 2011, based upon the foregoing reasons, IT IS ORDERED that the above-captioned matter shall be, and hereby is, DISMISSED with prejudice. Signed by Judge Sean J. McLaughlin on 11/30/2011. (kas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL WINSTON,
Plaintiff,
v.
MICHAEL LINDSEY, et al.,
Defendants.

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Case No. 1:09-cv-224-SJM

MEMORANDUM ORDER
McLAUGHLIN, SEAN J., District J.,
This pro se civil action was commenced on August 28, 2009 by Plaintiff Michael
Winston. The named Defendants originally included Michael Lindsey, a Pennsylvania
State Trooper, and various other public officials employed by or within Warren County,
Pennsylvania whom Winston alleges violated his federal civil rights. By memorandum
order dated September 21, 2010 [29], this Court dismissed all claims directed against
Magisterial District Judge Laura Bauer, as well as all claims directed against the Warren
County Public Defender and the Warren County District Attorney.
Upon consideration of Defendant Lindsey’s motion to dismiss the complaint, the
Court denied the motion insofar as it related to Winston’s claim under 42 U.S.C. § 1983
that Lindsey subjected him to excessive force in violation of his Fourth Amendment
rights. The motion was granted with respect to all other claims against Lindsey with the
caveat that Winston was granted leave to file an amended complaint, on or before
October 21, 2010, repleading his § 1983 claim premised upon the theory that Lindsey
had denied him necessary medical treatment in violation of his Fourteenth Amendment
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due process rights. All claims against Defendant Larry Kopko, the Warren County
Sheriff, were dismissed with a similar caveat that Winston could replead, on or before
October 21, 2010, his §1983 claim against Defendant Kopko premised upon the alleged
denial of necessary medical treatment. The Court’s memorandum order specifically
advised that failure to so replead within the October 21, 2010 deadline would result in
dismissal of the claim(s) with prejudice.
Rather than replead the foregoing claims, Winston filed a notice of appeal [32] on
October 7, 2010 from this Court’s September 21, 2010 memorandum order,
notwithstanding the fact that no final appealable order had yet been rendered in the
case. The Third Circuit Court of Appeals never reached the merits of the appeal but
instead issued an order on December 20, 2010 [36] dismissing the appeal due to
Winston’s failure to timely prosecute the matter. Following entry of that order, Winston
filed two “notices” ([37] and [38]) informing this Court that he would be proceeding with
his case before the United States Supreme Court.
Thereafter, Winston filed in this Court a motion [39] for appointment of counsel
and to “reopen” the case, despite the fact that the case had never officially been closed.
By Memorandum Order dated July 15, 2011 [40], the undersigned denied Winston’s
request for appointment of counsel without prejudice and denied as moot his request to
“reopen” the case.
Moreover, in light of Winston’s past failure to diligently prosecute his case, the
Court established a twenty-day deadline (i.e., August 4, 2011) within which Winston
could replead his remaining §1983 claims premised on the alleged use of excessive
force and the alleged denial of required medical treatment, to the extent he still intended
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to pursue those claims. The Court specifically admonished that any future filing should
comply with the requirements of Federal Rules of Civil Procedure 8(a) and 12(b)(6) as
well as the mandates of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009), and Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir.
2008). The Court further admonished that Winston’s failure to file an amended
complaint on or before August 4, 2011 would be construed by this Court as an
indication that he no longer wished to prosecute this civil action.
Following entry of this Order, Winston filed a “response” [41] in which he claims,
among other things, that the dismissal of his appeal before the Third Circuit was the
fault of the Clerk of the District Court and that U.S. Marshals had harassed him and his
mother. To date, Winston has made no attempt to replead his federal civil rights claims
in accordance with this Court’s previous directives.
The U.S. Court of Appeals for the Third Circuit has set out a six-factor balancing
test to guide district courts in determining whether dismissal of a case is appropriate.
Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). Under this
test, the lower courts must consider: (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. Id. at 868. Not all of the six factors need to weigh in favor of
dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.
1988).
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Our application of the Poulis factors here leads to the conclusion that dismissal of
this case is appropriate. Since this Court’s Memorandum Opinion and Order of
September 21, 2010 [29] dismissing certain claims and allowing Winston the opportunity
to replead others, Winston has taken no action to actually move the case forward in this
venue despite express notice on two separate occasions that his failure to replead the
remaining federal claims would result in their dismissal. Meanwhile, Defendants
Lindsey and Kopko have been prejudiced by this inordinate delay; despite its pendency
for more than two years, this litigation still has not proceeded past the pleading stage.
Winston is proceeding pro se, as this Court previously determined that a request for
representation by voluntary counsel would be inappropriate in this case; accordingly, as
a pro se litigant, Winston bears all of the responsibility for any failure to prosecute his
claims. Alternative sanctions, such as monetary penalties, are inappropriate with
indigent parties. Finally, we note that, while Winston’s allegations may state a claim
upon which relief could ultimately be granted, the merits of his claims are impossible to
determine at this early stage of proceedings.
In light of all these considerations, the following Order is entered:

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AND NOW, to wit, this 30th Day of November, 2011, based upon the foregoing
reasons, IT IS ORDERED that the above-captioned matter shall be, and hereby is,
DISMISSED with prejudice.

s/

Sean J. McLaughlin
SEAN J. McLAUGHLIN
United States District Judge

cm:

All parties of record.

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