SLOAN v. PITKINS et al
Memorandum Opinion & Order granting defendants' motion to dismiss for failure to prosecute (ECF No. 87 ) for the reasons stated in the memorandum opinion. This matter is dismissed with prejudice and the Clerk is directed to close this case. Signed by Judge Kim R. Gibson on 8/17/2017. (gdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID PITKINS, et al.,
Case No. 3:13-cv-104
JUDGE KIM R. GIBSON
Pending before the Court in this prisoner civil-rights case is defendants’ motion to dismiss
for failure to prosecute (ECF No. 87). Defendants’ motion is based on plaintiff Aaron Sloan’s
alleged improper conduct during the December 1, 2016 telephonic pretrial conference in this case.
That telephonic pretrial conference was cut short when Sloan’s call was disconnected following
an audible commotion from his end of the call. A prison employee later explained that the call
was disconnected—and that Sloan was escorted back to his cell—because he had exposed his
penis and begun masturbating in front of the employee while he was on the phone. Sloan denies
that he did this, and claimed in the resulting prison disciplinary process that these allegations are
“part of a conspiracy and retaliatory in nature.” (ECF No. 89-2.)
This is a sordid situation. After weighing the factors for dismissal for failure to prosecute,
and because the Court credits the prison employee’s explanation of what occurred during the
telephonic pretrial conference, the Court concludes that defendants’ motion to dismiss should be
granted. This case will therefore be dismissed with prejudice.
On May 16, 2013, Sloan filed this civil-rights case against several correctional officers at
SCI Somerset and employees of the Pennsylvania Department of Corrections (“DOC”). (See ECF
No. 1.) Sloan’s claims arise from an alleged incident of excessive force on July 15, 2010, at SCI
Somerset. Over the course of this case, a number of defendants and claims were dismissed as a
result of defendants’ motions to dismiss and for summary judgment, and the Court eventually
scheduled trial for January 2017 (see ECF No. 82).
On December 1, 2016, this Court unsuccessfully attempted to hold the pretrial conference
in this case by telephone. The reason the pretrial conference was unsuccessful is because the
plaintiff—Aaron Sloan, who is now incarcerated at SCI Greene and represents himself—was
disconnected from the line by the prison. (See ECF Nos. 86, 91 at 6:22-9:17. 1) Initially, when the
Court got on the line, defendants’ counsel was the only person on the call. (ECF Nos. 86, 91 at
2:4-22.) Defendants’ counsel then stated that Sloan had been on the call but that someone in the
background on his end had said “[h]e’s being inappropriate. We have to end the call,” and that
the call had then ended. (See ECF No. 91 at 2:4-9.) Defendants’ counsel then stated that she would
call the prison back to get an explanation of what had occurred. (Id at 2.)
A few minutes later, defendants’ counsel called the Court back with Sloan on the line. No
explanation was given for the interruption, and the Court again attempted to hold the pretrial
conference. A minute or so into the conference, however, a commotion could be heard from—
what appeared to be—Sloan’s end of the line, and Sloan stated that he was being told to end the
ECF No. 86 is the Court’s conference memo of the attempted pretrial conference and ECF No. 91 is the
official transcript of that conference. These documents explain the sequence of events during the pretrial
conference and recite the prison employee’s statements in more detail.
call. (See id. at 4:23-6:2.) Defendants’ counsel asked to speak to someone at the prison but
eventually the call ended without explanation or response. Defendants’ counsel then stated that
she would call the prison back again and then call the Court with an explanation.
Approximately ten minutes later, defendants’ counsel called back. This time she had a
prison employee on the line. (See id. at 6:22-25.) The prison employee told the Court that she had
been present for the first call (this, it seems, was before the Court got on the line), and had been
separated from Sloan by a glass barrier and cage with a small opening. (Id. at 7:6-8:11.) The
employee stated that she had placed the call on speaker phone after defendants’ counsel called in
the first time, and that—while they were waiting for the call to connect (presumably while they
were waiting for the Court to get on the line)—she “noticed [Sloan’s] hand moving, and [she]
looked down and he had his penis all the way out and he was jacking off . . . .” (Id. at 7:8-10.) The
employee stated further that she “[didn’t] want to be too graphic with it, but he was masturbating.
I mean that’s just inappropriate so.” (Id. at 7:12-13.) She explained that she had then said “[h]e’s
being inappropriate so I’m going to end the phone call,” and had ended the call and left the room
to get correctional officers to escort Sloan back to his cell. (Id. at 7:14-16, 8:17-18.)
At this point defendants’ counsel explained that, after Sloan’s call disconnected the first
time, she had called the number back and that the prison receptionist connected counsel back to
the conference room. Defendants’ counsel said that Sloan had picked up—which is when counsel
called the Court back and the second call with the Court began. (See id. at 7:17-23.) Defendants’
counsel asked the employee whether that second call should have occurred, and she explained
[PRISON EMPLOYEE]: No, I mean the reason why the
operator put you back through is because I’m in a different part of
the prison. So she probably just thought we got disconnected and
was trying to connect you guys again. I had left the room. There’s
glass and a cage separating us. I’m really surprised he was even
able to get his hand through there to answer the phone, because it
wasn’t that close.
I’m not sure how he was even able to do that. But there’s a
little slit there so that you can hear. He was probably able to get his
hand through to at least push the button to put it back on speaker,
I would assume.
[DEFENDANTS’ COUNSEL]: Okay. And then you -[PRISON EMPLOYEE]: But I wasn’t in the room at that
time, so yeah, the officers were probably trying to extract him out.
(Id. at 8:1-15.)
Defendants subsequently filed the motion to dismiss before the Court (ECF No. 87).
Defendants attached several DOC disciplinary records for Sloan as exhibits to their motion. (See
ECF No. 87-2.) These records establish that Sloan was issued prison misconducts for both sexual
harassment and indecent exposure based on the events of December 1, 2016.
employee provided a written statement in support of these charges (ECF No. 87-2 at 2), wherein
she alleged substantially the same version of events as she had told the Court during the
Sloan provided a statement in response; he denied exposing his penis and
masturbating during the call. (See ECF No. 89-2.) At the hearing on these misconducts, the
hearing examiner heard testimony from the prison employee and defendants’ counsel and
received Sloan’s statement. (See ECF No. 87-2 at 3.) The hearing examiner concluded that it was
more likely than not that Sloan had exposed himself and sexually harassed the employee. (See
id.) Thus, Sloan was found guilty on both misconducts. Sloan filed an opposition to defendants’
motion, wherein he denies the prison employee’s allegations and claims he did not behave
inappropriately during the conference call. (See ECF No. 89.)
“Both the Federal Rules of Civil Procedure and a court’s inherent authority to control its
docket empower a district court to dismiss a case as a sanction for failure to follow procedural
rules or court orders.” Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir. 2013) (citation omitted);
see also Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962) (tracing and outlining courts’ inherent
authority to dismiss cases for lack of prosecution). The United States Court of Appeals for the
Third Circuit has held that a district court should consider and balance the following factors in
determining whether such a dismissal is appropriate:
(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; and (6) the meritoriousness of the
claim or defense.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Not all of these factors need
to weigh in favor of dismissal before dismissal is warranted, Mindek v. Rigatti, 964 F.2d 1369, 1373
(3d Cir. 1992), and “no single Poulis factor is dispositive.” Ware v. Rodale Press, Inc., 322 F.3d 218,
222 (3d Cir. 2003).
Poulis “[does] not provide a magic formula whereby the decision to dismiss or not to
dismiss a plaintiff’s complaint becomes a mechanical calculation.” Mindek, 964 F.2d at 1373.
When considering imposing the harsh sanction of dismissal, courts—in close cases—should
resolve doubts “in favor of reaching a decision on the merits.” Adams v. Trs. of N.J. Brewery Emps.’
Pension Trust Fund, 29 F.3d 863, 878 (3d Cir. 1994) (quoting Scarborough v. Eubanks, 747 F.2d 871,
878 (3d Cir. 1984)). That is so because “[d]ismissal must be a sanction of last, not first, resort.”
Poulis, 747 F.2d at 869.
Discussion & Analysis
Although Poulis ordinarily governs situations where the plaintiff has violated a
procedural rule or a court’s order—rather than situations involving flagrant and improper
conduct—the Court finds that its analysis is applicable here as well. See Gantt v. Maryland Division
of Correction, 894 F. Supp. 226, 229 (D. Md. 1995) (applying substantially similar factors in
dismissing prisoner-plaintiff’s case where he had sent letters to the court with threats, obscenities,
and streaked them with excrement). The Court will thus analyze defendants’ motion under
The outcome of defendants’ motion turns on whether the Court believes the prison
employee. Ordinarily the Court would conduct an evidentiary hearing to gauge these sort of
allegations, and had the Court not been on the call and heard the prison employee’s statements—
which were given on the record, albeit telephonically and unsworn—it would have scheduled an
evidentiary hearing here. But the Court was on the call, and does not believe an evidentiary
hearing is necessary based on the facts in the record and its presence on the call.
Sloan cursorily objects to defendants’ reliance on the prison employee’s statements and to
the admissibility of the disciplinary records because they “are not sworn statements or unsworn
statements made subject to the penalty of perjury,” and because he was not given the chance to
question the evidence in the disciplinary proceedings. (See ECF No. 89 at 5.) The Court rejects
Sloan’s objections. The prison employee’s statements on the call were made minutes after she
witnessed the events that she discussed, and—based on the employee’s tone of voice and her
word choice—while she was still under the stress of excitement that the events caused. The Court
therefore concludes that her statements on the call are not hearsay because they qualify under the
excited-utterance exception of Federal Rule of Evidence 803(2). As for the disciplinary-hearing
report wherein Sloan was found guilty of the misconducts arising from the December 1, 2016
events, the statements contained within that report are substantially the same as the Court’s own
conference memo (ECF No. 86) and the prison employee’s statements on the call (see ECF No. 91).
As for whether the report itself is hearsay, the Court concludes that it qualifies as a record of a
regularly conducted activity. The Court therefore sees no evidentiary issue in relying on the
prison employee’s statements or on the disciplinary-hearing report in its analysis.
The Court credits the prison employee’s statements and finds that it is more likely than
not that Sloan did expose himself and masturbate in front of the prison employee during the
December 1, 2016 pretrial conference call. The Court bases this finding on its own participation
in the pretrial conference call, the prison employee’s statements both during the conference call
and in the disciplinary-hearing report, and that Sloan was charged and found guilty of
misconducts as a result of his alleged conduct during the December 1, 2016 pretrial conference.
Furthermore, the Court finds Sloan’s version of events incredible.
As for Sloan’s claim that he was not allowed to test the evidence in the disciplinary
hearing, he was given the opportunity to question the allegations before this Court by way of his
opposition brief. But his explanations and arguments are unpersuasive. Sloan alleges that the
first call with defendants’ counsel—before the Court got on the line—disconnected because the
phone’s battery was low. (ECF No. 89 at 1.) He alleges further that the prison employee then
returned to the room, reconnected the call, left the room again, and that prison guards entered
the room some minutes later and directed him to end the call—and that he did not act
inappropriately at any time during the call. (See ECF No. 89.) Yet Sloan’s version of events does
not account for defendants’ counsel’s statement to the Court, after the first call and once the Court
got on the line, that someone in the background of the call had said Sloan was acting
inappropriately and that the call was being ended for that reason. According to Sloan, the prison
employee never said this or disconnected the first call. (See id.)
Thus, for Sloan’s version of events to be true, not only must the prison employee be lying,
but defendants’ counsel must be lying as well. Indeed, that is what Sloan alleges. (Id. at 6
(“Attorney Friedline was able to privately communicate with prison officials and come up with
a story of how Plaintiff committed some wrong-doing [sic]”).) Although Sloan alleges that this
conspiracy by defendants’ counsel was concocted during the moments after he was escorted back
to his cell, for Sloan’s version to be true it must actually be that counsel planned this prior to the
Court connecting to the first call. Otherwise, defendants’ counsel’s statement to the Court that
someone had said Sloan was acting inappropriately would have served no purpose. And
defendants’ counsel must then have conspired with the prison employee to lie to the Court. Not
only would this be a gross violation of the Pennsylvania Rules of Professional Conduct, but it is
simply not credible.
The Court therefore credits the prison employee’s allegations. It will apply the Poulis
The first Poulis factor is the extent of the party’s personal responsibility. Sloan engaged in
this behavior of his own volition and made the conscious choice to do so. The personalresponsibility factor therefore favors dismissal.
The second Poulis factor is the prejudice to defendants that resulted from Sloan’s behavior.
Sloan’s conduct frustrated the pretrial conference, resulted in the cancelation of trial
approximately a month before trial was to begin, and resulted in further delay in resolving this
case. And as defendants point out, Sloan’s behavior impeded their ability to effectively prepare
for trial. Sloan’s conduct and disruption of the pretrial conference thus substantially prejudiced
defendants, and this factor therefore likewise favors dismissal.
The third Poulis factor is a history of dilatoriness. “Extensive or repeated delay or
delinquency constitutes a history of dilatoriness, such as consistent non-response to
interrogatories, or consistent tardiness in complying with court orders.” Adams, 29 F.3d at 874
(citing Poulis, 747 F.2d at 868). Defendants argue that a history of dilatoriness on Sloan’s part is
met here, but this factor presents a closer call. It is true that this case has lingered, but most cases
by prisoners who represent themselves do. The nature of such cases means that they often last
longer than other cases; all filings are usually made and received by mail—which requires more
time than the electronic filing and receipt of documents does—and researching and drafting legal
documents in prison, by a litigant who typically has no experience in such matters, can take
significantly more time than it would for counsel. Thus, some delays are to be expected.
But this case is atypical even compared to other prisoner cases. Although Sloan disputes
his responsibility for these delays, the case has been held up at various times by his actions. (See
ECF Nos. 2 (order dismissing case because plaintiff failed to submit a certified copy of his
prisoner-account statement), 28 (correspondence from the U.S. Marshals notifying the Court that
Sloan never provided them with directions for service on certain defendants and that they
therefore closed their file), 31 (motion for continuance by Sloan), 75-77 (granting Sloan a 21-day
extension to file objections based on his motion for extension, though Sloan never filed any
objections—meaning the extension was pointless), Text Order dated January 6, 2015 (denying
Sloan’s motion for restraining order against SCI Somerset based on “information that Plaintiff has
been confined in a psychiatric unit at SCI-Pittsburgh and [refused] to come out of his cell to
participate in this Court’s scheduled telephone hearing”).) Even if the Court gives Sloan the
benefit of the doubt regarding his responsibility for these delays, the history-of-dilatoriness factor
weighs moderately in favor of dismissal.
The fourth Poulis factor requires determining whether Sloan’s conduct was willful or in
bad faith. “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875.
Contumacious behavior, like “self-serving instances of flouting court authority and professional
irresponsibility,” can qualify as bad faith. See id. (citing cases). Here, the willfulness-or-bad-faith
factor requires little analysis because it is difficult to conclude that Sloan’s conduct was anything
other than willful and in bad faith. He was in control of his actions and chose to expose himself
and masturbate in front of a prison employee during a telephonic pretrial conference with this
Court. His conduct was intentional (and presumably self-serving) and entirely inappropriate
during a judicial proceeding that was being conducted in preparation for trial. The willful-or-inbad-faith factor is therefore met and too weighs in favor of dismissal.
The fifth Poulis factor requires determining whether sanctions other than dismissal would
be effective. “When a litigant is represented by counsel, the most ‘direct and therefore preferable’
sanction is to impose costs caused by the delay.” Woo v. Donahoe, No. 12-cv-1265, 2013 WL
5636623, at *4 (E.D. Pa. Oct. 16, 2013) (quoting Poulis, 747 F.2d at 869). “In a pro se context,
however, monetary sanctions may not be an effective alternative.” Id. at *3 (internal quotations
and citations omitted). That is so because “[p]ro se plaintiffs clearly lack attorneys on whom costs
could be imposed under the Federal Rules of Civil Procedure, and such plaintiffs often lack the
ability to pay monetary sanctions.” Id. (citing Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008)).
Thus, when a plaintiff represents himself and is proceeding in forma pauperis—like Sloan—
“monetary sanctions would not be an effective alternative.” Emerson v. Thiel Coll., 296 F.3d 184,
191 (3d Cir. 2002). Nor does it appear that other sanctions—like precluding Sloan from offering
certain evidence at trial—would be an effective sanction to reprimand Sloan and guarantee that
he would conduct himself appropriately at trial. Sloan’s conduct demonstrates disrespect for the
judicial process and—given that he was willing to do this on a pretrial conference call with
counsel and the Court—convinces the Court that he is likely to engage in similar acts in the future
and at trial. The Court therefore concludes that alternative sanctions other than dismissal would
not be effective, meaning this factor likewise weighs in favor of dismissal.
The sixth and final Poulis factor examines whether the plaintiff’s claim appears to be
meritorious. A claim is meritorious if the allegations in the complaint would support recovery if
they were established at trial. Poulis, 747 F.2d at 869-70 (citing cases). Here, this factor weighs
against dismissal; Sloan’s complaint theoretically states valid claims, and although some of his
claims have been dismissed, others have survived to the current stage of awaiting trial. Some of
his claims thus appear to be meritorious, which weighs against dismissal.
Although Poulis “[does] not provide a magic formula whereby the decision to dismiss or
not to dismiss a plaintiff’s complaint becomes a mechanical calculation,” Mindek, 964 F.2d at 1373,
the Court concludes that—on balance—application of the Poulis factors here demonstrates that
dismissal with prejudice is warranted. The Court has concluded that four of the six factors—
Sloan’s personal responsibility, the prejudice to defendants, Sloan’s willfulness and bad faith, and
the effectiveness of alternative sanctions—all weigh heavily in favor of dismissal. One factor—
Sloan’s history of dilatoriness—weighs somewhat in favor of dismissal. And only one factor—
the meritoriousness of Sloan’s claims—weighs against dismissal. While the Court recognizes that
dismissal is a harsh sanction that should be used only in extreme cases, the Court holds that this
case qualifies as such, and that dismissal is appropriate. Sloan’s case will thus be dismissed with
prejudice. A corresponding order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Case No. 3:13-cv-104
JUDGE KIM R. GIBSON
DAVID PITKINS, et al.,
NOW, this 17th day of August 2017, upon consideration of defendants' motion to dismiss
for failure to prosecute (ECF No. 87) and for the reasons in the memorandum opinion
accompanying this order, it is HEREBY ORDERED that defendants' motion is GRANTED. This
matter is dismissed with prejudice and the Clerk is directed to close this case.
BY THE COURT:
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
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