GLATTS v. LOCKETT et al

Filing 132

ORDER granting[ECF No. 127] Motion to Dismiss Second Amended Complaint for Failure to State a Claim, filed on behalf of Defendant Robert McGrath M.D., identified in the caption as DR. McGRATH (Medical Director). Signed by Magistrate Judge Maureen P. Kelly on 10/14/2011. A copy of the Order is being mailed contemporaneously with entry to Plaintiff's addresses of record. (ndf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID MICHAEL GLATTS,
Plaintiff,

)
)
)
vs.
)
)
MR. LOCKETT, Superintendent SCI
)
Greensburg); MR. MATTHEWS (AOD )
Director SCI Greensburg); DR. CARINS, )
PHD (Director of Psychology SCI
)
Greensburg); MS. KWISNECK, R.N.
)
(ADA Coordinator SCI Greensburg);
)
MR. TREVOR WINGARD (Deputy
)
Superintendent SCI Greensburg); DR.
)
McGRATH (Medical Director);
)
MS PRICE, TC Program Director
)
(SCI Greensburg); MR. SECKERS,
)
(Deputy SCI Greensburg);
)
INMATE DISABILITY
)
COMMITTEE PA.
)
DOC; BUREAU OF TREATMENT
)
SERVICE PA. DOC,
)
Defendants. )

Civil Action No. 09-29
Magistrate Judge Maureen P. Kelly
[ECF No. 127]

OPINION AND ORDER
KELLY, Magistrate Judge
Defendant Robert McGrath, M.D., identified in the caption as “Dr. McGrath (Medical
Director),” has filed a Motion to Dismiss the Second Amended Complaint in the abovecaptioned case [ECF No. 127]. For the reasons set forth below, the Motion is granted and
Defendant McGrath is dismissed as a result of Plaintiff’s failure to prosecute.
On June 3, 2011, the Court entered an Order construing Plaintiff’s self-styled Motion to
Enter a Third Amended Complaint as, instead, Plaintiff’s Second Amended Complaint. [ECF

No. 123]. The Complaint, filed against, inter alia, Robert McGrath, M.D., Medical Director at
the State Correctional Institute at Greensburg (“SCI-Greensburg”), alleges that Plaintiff was
terminated from a therapeutic community in violation of the American with Disabilities Act
(“ADA”), 29 U.S.C. § 12131 et seq,. and that he was retaliated against for filing grievances
related thereto in violation of his rights under the First Amendment of the United States
Constitution. [ECF No. 118]. In response to the Second Amended Complaint, Defendant
McGrath filed a Motion to Dismiss pursuant to Fed. R. Civ. P 12(b)(6) for failure to state a claim
upon which relief may be granted. [ECF No. 127]. Subsequently, on August 4, 2011, the Court
entered an Order requiring the Plaintiff to file a response to the Motion to Dismiss no later than
September 4, 2011. [ECF No. 129]. Plaintiff failed to file his response and on September 9,
2011, the Court entered an Order to Show Cause why this action should not be dismissed as to
Defendant Robert McGrath, M.D., for Plaintiff’s failure to prosecute this action against him.
[ECF No. 131]. To date, Plaintiff has failed to respond.
It is clear that the punitive dismissal of an action for failure to comply with court orders is
left to the discretion of the court. Mindek v. Rigatti, 964 F.2d 1369 (3d Cir. 1992). In
determining whether an action should be dismissed as a sanction against a party the court must
consider six factors. These factors, as set forth in Poulis v. State Farm Fire and Casualty
Company, 747 F.2d 863, 868 (3d Cir. 1984), are as follows:
(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 the attorney was willful or in bad
faith.

(5)

The effectiveness of sanctions other than dismissal, which entails an
analysis of alternative sanctions.

(6)

The meritoriousness of the claim or defense.

Consideration of these factors reveals that the instant action should be dismissed.
In this case, the first, third and fourth factors all relate to Plaintiff's failure to comply with
this Court's orders. Plaintiff's failure to respond to the Motion to Dismiss was not only solely his
personal responsibility but his failure to do so even four weeks later after the entry of the Order
to Show Cause appears willful and constitutes a history of dilatoriness.
With respect to the second factor -- the prejudice caused to the adversary by Plaintiff's
failure to comply with this Court's orders -- other than the expense of filing a motion seeking
dismissal of the case and brief in support thereof, there appears to be no specific prejudice to
Defendant other than general delay. Similarly, factor No. 6 -- the meritoriousness of the claim -will be weighed neither in favor nor against Plaintiff. Nevertheless, "[n]ot all of these factors
need be met for a district court to find dismissal is warranted." Hicks v. Feeney, 850 F.2d 152,
156 (3d Cir. 1988).
The final factor to consider is the effectiveness of sanctions other than dismissal. Since
Plaintiff filed this action in forma pauperis, it does not appear that monetary sanctions are
appropriate. Moreover, because Plaintiff has failed to respond to Defendant=s Motion to
Dismiss, it appears that Plaintiff has no serious interest in pursuing this case against Dr.
McGrath. Therefore, dismissal is the most appropriate action for this Court to take, and the
complaint in the above-captioned case is dismissed against Robert McGrath, M.D. since no other

sanctions will serve justice. Mindek, supra; Titus v. Mercedes Benz, 695 F.2d 746 (3d Cir.
1982). Accordingly, an appropriate Order follows.
AND NOW, this 14th day of October, 2011, upon consideration of the Motion to Dismiss
the Second Amended Complaint filed by Defendant Robert McGrath, M.D., IT IS HEREBY
ORDERED that Plaintiff’s Second Amended Complaint is DISMISSED WITH PREJUDICE as
to Defendant Robert McGrath, M.D., identified in the caption as “Dr. McGrath (Medical
Director).”
BY THE COURT,
/s/ Maureen P. Kelly
U.S. Magistrate Judge
Dated: October 14, 2011

cc:

David Michael Glatts
12134 Joan Drive
Pittsburgh, PA 15235
David Michael Glatts
C/O Renewal, Inc.
339 Boulevard of the Allies
Pittsburgh, PA 15222
All counsel of record via CM-ECF

4