KLOSS v. SCI ALBION/PA D.O.C. et al

Filing 212

ORDER adopting 148 Report and Recommendations. Defendants Wagner and Santos are dismissed for Plaintiff's failure to prosecute. Signed by Judge Barbara Rothstein on 6/7/2017. (jds)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Daniel A. Kloss,

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Plaintiff,
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v.
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SCI Albion/PA D.O.C. et al.,
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Defendants.
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____________________________________)
I.

Civil Case No. 15-cv-00282
ORDER ADOPTING THE
REPORT AND RECOMMENDATION

INTRODUCTION

Before the Court is the Report and Recommendation (“R&R”) of the Honorable Susan
Paradise Baxter, United States Magistrate Judge, recommending that the Court dismiss Defendants
Ms. Wagner and Mr. Santos from this case for Plaintiff’s failure to prosecute. (ECF No. 148).
Plaintiff timely filed objections to the R&R. (ECF No. 150). Having reviewed the Report and
Recommendation, Plaintiff’s objections thereto, the record of the case, and the relevant law, the
Court HEREBY ADOPTS the Report and Recommendation to dismiss Defendants Ms. Wagner
and Mr. Santos for Plaintiff’s failure to prosecute.
II.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Daniel A. Kloss, an inmate incarcerated at the State Correctional Institution in
Albion, Pennsylvania, filed a pro se complaint on November 23, 2015 naming Defendants Nancy
Giroux (“Giroux”), SCI Albion, PA D.O.C., Valerie Kuziak (“Kuziak”), Dr. Robert Maxa
(“Maxa”), Christine Zirkle (“Zirkle”), Ms. Wagner (“Wagner”), and Mr. Santos (“Santos”). (ECF
No. 3). Plaintiff alleges sexual harassment, denial of medical treatment, violations of his First
Amendment “Right for Religion,” and violation of the “Federal Disability Act.” (ECF No. 3
(Compl. at ¶ 4)). The factual allegations involving prison officials Wagner and Santos are sparse.

Plaintiff contends Wagner made an agreement with Plaintiff that Plaintiff could continue to have
a fellow prisoner, Mr. Butler, as his cellmate and “live-in aide.” Plaintiff claims Wagner “never
did what she said she would do.” (ECF No. 3 (Compl., ¶¶ 7, 8)). Additionally, Plaintiff avers
Santos promised Plaintiff that Plaintiff would be returning to SCI Albion Unit B/B with cellmate
Mr. Butler, after being moved to McKean County prison for a hearing. (ECF No. 3 (Compl., ¶ 13)).
However, Plaintiff and Mr. Butler were separated as cellmates “due to possible sexual relations
with each other.” (ECF No. 3 (Compl. ¶¶ 15, 16.))
On December 28, 2015, Magistrate Judge Baxter issued an Order directing the U.S.
Marshal to serve the complaint upon the Defendants in accordance with the required USM-285
“Process Receipt and Return” form, to be provided by Plaintiff for each individual Defendant.
(ECF No. 6). Although service copies were received by the U.S. Marshal, they lacked the required
documents to effectuate service on all Defendants. (ECF No. 11). Plaintiff was notified by the U.S.
Marshal that Plaintiff only provided the required service forms for Defendants Giroux and SCI
Albion/PA D.O.C. Thus, on April 6, 2016, Magistrate Judge Baxter issued an Order directing
Plaintiff to provide the proper forms for each named Defendant by April 26, 2016, so that
Defendants could be properly served with the complaint in this matter. (ECF No. 36).
Subsequently, Plaintiff filed with the Clerk USM-285 forms for Defendants Kuziak, Maxa, Suesser
and Zirkle. (ECF No. 143). No service instructions were ever provided for Defendants Wagner
and Santos in compliance with the Court’s Order of April, 6, 2016. Moreover, Plaintiff did not
name Wagner and Santos as Defendants in the August 25, 2016 Proposed Amended Complaint.
(ECF No. 86).
Thereafter, on April 10, 2017, Magistrate Judge Baxter issued the R&R, recommending
that this Court dismiss Defendants Wagner and Santos for Plaintiff’s failure to prosecute due to

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Plaintiff’s failure to provide the required USM-285 “Process Receipt and Return” service forms
for Defendants Wagner and Santos. (ECF No. 148).
Plaintiff filed timely objections to the R&R. (ECF No. 150). In his objections, Plaintiff
avers it was never brought to his attention until the April 10, 2017 Order that Wagner and Santos
were never served. Plaintiff states he submitted additional USM-285 forms in his August 25, 2016,
Proposed Amended Complaint; however, Wagner and Santos were not named Defendants. (ECF
No. 86). Plaintiff claims his failure to prosecute Defendants Wagner and Santos was an “honest
mistake” and Plaintiff requests additional time to submit the proper paperwork for Wagner and
Santos. (ECF No. 150).
III.

DISCUSSION

A. Standard of Review
When a party files objections to an R&R, the district court must review the Magistrate’s
findings de novo. United States v. Raddatz, 447 U.S. 667, 673 (1980); Fed. R. Civ. P. 72(b). To
obtain de novo review, a party must timely file, and specifically identify portions of the R&R to
which it objects. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The district court may accept,
reject, or modify, in whole or in part, the findings and recommendations made by the Magistrate
Judge. Raddatz, 447 U.S. at 673-74; see also 28 U.S.C. § 636(b)(1).
B. Analysis
Magistrate Judge Baxter recommends the dismissal of Defendants Wagner and Santos for
Plaintiff’s failure to prosecute. (ECF No. 148). Federal Rule of Civil Procedure 41(b) permits a
district court to dismiss a plaintiff’s case if the plaintiff fails to prosecute or comply with a court
order. Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). To assure that the “extreme” sanction
of dismissal is reserved for occurrences where it is justly merited, the Third Circuit has established

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a six-factor balancing test. Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 870 (3d Cir.
1984) (reiterating that dismissals with defaults are drastic sanctions termed “extreme”) (citing
Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)). To determine
whether dismissal is appropriate, the court must weigh: (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 868-70. Not all of these factors are required to be met to warrant a dismissal. Hicks v. Feeney,
850 F.2d 152, 156 (3d Cir. 1988). Applying the Poulis factors to the present matter, the Court
adopts Magistrate Judge Baxter’s recommendation that the Court dismiss Defendants Wagner and
Santos for Plaintiff’s failure to prosecute.
1. The Extent of the Party’s Personal Responsibility
A pro se plaintiff is personally responsible for complying with court orders and is solely
responsible for the progress of his case. Briscoe, 538 F.3d at 258-59. Since the commencement of
this action, Plaintiff has repeatedly failed to take the necessary steps to prosecute this case against
Defendants Wagner and Santos. Specifically, Plaintiff failed to comply with the April 6, 2016,
Court Order that Plaintiff provide the Clerk with a USM-285 form for each named Defendant.
(ECF No. 36). Because Plaintiff only provided the required USM-285 forms for Defendants
Suesser, Zirkle, Kuziak, and Maxa, no service instructions were ever provided for Defendants
Wagner and Santos. Further, in the April 27, 2016 hearing, Plaintiff acknowledged that the USM285 forms for service had not been completed for Wagner and Santos. (ECF No. 52 (Hr’g Tr.,
2:24-3:12, Apr. 27, 2016)). On August 25, 2016, Plaintiff filed a Motion for Leave to File an

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Amended Complaint in which he named additional Defendants; again, no service instructions were
ever provided for Defendants Wagner and Santos. In fact, these Defendants were not even named
in the proposed Amended Complaint. (ECF No. 86 at 2-4). As such, Plaintiff has no one to blame
but himself.
2. Prejudice to the Adversary
Defendants Wagner and Santos have been prejudiced by Plaintiff’s continuous failure to
provide the required service instructions to the U.S. Marshal. See Poulis, 747 F.2d at 868.
Plaintiff’s failure to serve the required USM-285 forms has deprived Defendants of the notice they
are due, hindering their ability to effectively prepare for and defend this action. Briscoe, 538 F.3d
at 259; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003) (hindering a party’s
ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial). It is, of
course, impossible for Defendants to defend an action where they have not been notified or served.
Such prejudice weighs in favor of dismissal.
3. History of Dilatoriness
As noted above, the record reflects Plaintiff’s significant dilatoriness. A history of
dilatoriness may be reflected by “extensive or repeated delay or delinquency . . . or consistent
tardiness in complying with court orders.” Briscoe, 538 F.3d at 260 (citing Adams, 29 F. 3d at
874). Since the inception of this case in November 2015, Plaintiff has failed to provide the required
instructions to the U.S. Marshal. In particular, Plaintiff failed to comply with the April 6, 2016,
Court Order directing him to provide the USM-285 forms for each named Defendant. (ECF No.
36). In addition to the Court’s Order, Plaintiff was notified in the April 27, 2016 hearing that he
had not provided the proper documentation to serve Defendants Wagner and Santos. (ECF No. 52.
Hr’g Tr., 2:24-3:12, Apr. 27, 2016). Despite the repeated notices and generous opportunity to serve

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Defendants, service instructions were never provided for Wagner and Santos. Accordingly,
Plaintiff’s dilatory failure to properly serve these Defendants warrants their dismissal.
4. Willful or Bad Faith Conduct
Although this Court concludes that Plaintiff was dilatory, it does not find that Plaintiff’s
conduct was willful or in bad faith. Under this factor, the Court must consider whether Plaintiff’s
conduct was “the type of willful or contumacious behavior” which is characterized as “flagrant
bad faith.” Briscoe, 538 F.3d at 262 (citing Adams, 29 F. 3d at 875). If the conduct is merely
negligent or inadvertent, the court will not find behavior to be “contumacious.” Poulis 747 F.2d
868-69. The Court does not attribute this Plaintiff’s dilatoriness to bad faith.
5. Availability of Alternative Sanctions
Further, a district court must consider the available sanctions alternative to dismissal. Id.
at 869. Where a plaintiff is proceeding pro se, and specifically in forma pauperis, monetary
penalties are generally not a viable sanction. See Emerson, 296 F.3d at 191. Dismissing Defendants
Wagner and Santos is the most appropriate consequence for Plaintiff’s failure to prosecute.
6. Meritoriousness of the Claim
Finally, in determining whether a plaintiff’s underlying claim is meritorious, the Court uses
the standard of Federal Rule of Civil Procedure 12(b)(6): “[a] claim, or defense will be deemed
meritorious when the allegations of the pleadings, if established at trial, would support recovery
by plaintiff . . . .” Briscoe, 538 F.3d at 263 (citing Poulis, 747 F. 2d at 869-70). The Court concludes
the allegations against Defendants Wagner and Santos in Plaintiff’s original complaint (ECF No.
3) lack merit. Plaintiff alleges that Defendants failed to keep a promise regarding Plaintiff’s cell
assignment with a fellow inmate; such allegations are not meritorious as to sexual harassment or
denial of medical treatment, nor do they state a claim for violations of Plaintiff’s First Amendment

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rights or the “Federal Disability Act.” In any event, Plaintiff failed to name Wagner and Santos as
Defendants in the Proposed Amended Complaint. (ECF No. 86). The Court will not find merit in
claims Plaintiff appears ready to discard.
Because the overwhelming weight of the Poulis factors favors dismissal, the Court adopts
Magistrate Judge Baxter’s recommendation to dismiss Defendants Wagner and Santos for
Plaintiff’s failure to prosecute.
IV.

CONCLUSION

For the foregoing reasons, the Court ADOPTS the Report and Recommendation (ECF No.
148) and DENIES Plaintiff’s objections and his request for additional time to submit the USM285 “Process Receipt and Return” forms (ECF No. 150) for Defendants Wagner and Santos.
SO ORDERED.
DATED this 7th day of June, 2017.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

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