SHELIGA v. BOROUGH OF NORTHERN CAMBRIA et al

Filing 29

MEMORANDUM OPINION AND ORDER denying 24 Motion to Dismiss for Lack of Prosecution; denying 28 Motion for Reconsideration. It is further Ordered that an Initial Rule 16 Scheduling Conference is scheduled for 2/4/2016, at 2:30 p.m., and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 1/14/2016. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)

MICHAEL SHELIGA,

)

Plaintiff,

CIVIL ACTION NO. 3:14-209

)
)

JUDGE KIM R. GIBSON

)

v.

)

BOROUGH OF NORTHERN
CAMBRIA, CAMBRIA COUNTY
TROOPER HUBER, PENNSYLVANIA
STATE POLICE,

)
)
)

)
)

Defendants.

)

MEMORANDUM OPINION
I.

Introduction
This civil rights case stems from the search and arrest of Plaintiff Michael Sheliga.

Presently before the Court are two motions:

(1) Defendants' motion to dismiss for

Plaintiff's failure to prosecute (ECF No. 24) and (2) Plaintiff's motion for reconsideration
of the Court's July 31, 2015, order (ECF No. 2S). For the reasons stated below, the Court
will DENY Defendants' motion to dismiss for Plaintiff's failure to prosecute and will
DENY Plaintiff's motion for reconsideration.

II.

Jurisdiction
The Court has jurisdiction over the federal constitutional claims pursuant to 28

U.S.C. § 1331 and 42 U.S.C. § 1983. The Court has supplemental jurisdiction over the state
law claims pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391(b).

Ill.

Background
Plaintiff initiated this action asserting federal constitutional claims under 42 U.S.C.

§ 1983 and violations of Pennsylvania law. In his complaint, Plaintiff seeks compensatory
and punitive damages, a declaratory judgment that it is not unlawful to knock on people's
doors, and an injunction against Defendants prohibiting them from arresting Plaintiff for
knocking on the doors of residences in Pennsylvania. (ECF No. 1.) Plaintiff alleges the
following facts in the complaint, which the Court will accept as true for the sole purpose
of deciding the pending motions.
On March 15, 2014, Plaintiff visited a Ukrainian Orthodox Church in Barnesboro,
Pennsylvania, and toured the Northern Cambria area. (ld. 1f1f 5-6.) At approximately 4:00
p.m., Plaintiff knocked on a door in Allport, Pennsylvania, to ask for information about a
'"company store' building." (Irf. 1f 7.) At approximately 5:00p.m., Plaintiff returned to
Barnesboro, lawfully parked his vehicle on a public road, and then walked through the
town for seventy-five to ninety minutes. (ld. <jJ<l[ 8-Y.)
When Plaintiff returned to his vehicle, he was confronted by a state police officer
who used his vehicle to block Plaintiff's vehicle and identified himself as "Trooper
Huber." (£d. 1f Ill.) Defendant Huber repeatedly informed Plaintiff that he would be
arrested if he ever knocked on any other doors. (Id. 1f 11.) When Plaintiff argued that he
had a constitutional right to knock on doors, Defendant Huber stated that he would be
arrested and demanded Plaintiff's driver's license. (/d. 'll'll 11-12.) After Plaintiff gave
Defendant Huber his driver's license, Defendant Huber demanded Plaintiff's telephone
number. (Id. <jf<jf 12-13.) Plaintiff stated that he did not want to provide his telephone
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number because he lived with his parents and did not want them to receive telephone
calls.

(ld.

~~

13.)

However, when Defendant Huber stated that he needed Plaintiff's

telephone number to complete his investigation, Plaintiff complied with the request. (ld.

'II 14.) Defendant Huber then unlawfully searched Plaintiff's pockets and, after finding
nothing unlawful, handcuffed Plaintiff and forced him to stand in front of the center of his
vehicle. (Id. 'II'II 15-1 6.) Defendant Huber entered his vehicle, where he remained for
approximately five minutes. (ld. 11 17.) When Defendant Huber got out of his vehicle, he
lectured Plaintiff "on the evils of door knocking." (!d.

~I H~.)

At this time, an officer from

Barnesboro-Northern Cambria, who is believed to have been Henry Reeger, arrived and
stated that he would arrest Plaintiff if he carne back and knocked on people's doors. (Id. 'II
19.)

At a Northern Cambria council meeting in April 2014, Officer Reeger stated that
people have a right of privacy and that he would arrest Plaintiff if he heard that Plaintiff
knocked on anyone's door.

(ld. ell 2!.)

When Plaintiff complained about Defendant

Huber's conduct, Sergeant Overdorf of the state police stated that Defendant Huber had
not acted unlawfully. (ld 'H 22.) Sergeant Overdorf informed Plaintiff that his speech
while knocking on doors was not protected speech. (Id.) He also stated that Plaintiff's
telephone number was demographic information and that Plaintiff would have been held
at the barracks if he had not provided it. (1d. <Jl 23.)
Plaintiff filed a two-count complaint against Defendants on September 23, 2014.
(ECF No I.) In Count I, Plaintiff appears to assert a claim under 42 U.S.C. § 1983 and
states that the state police and the police officers of Northern Cambria are inadequately
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trained for the following reasons: (1) a citizen has a right to knock on doors; (2) law
enforcement officers do not have the right to arrest anyone for failing to answer questions
or for failing to provide a telephone number; (3) law enforcement officers do not have the
right to handcuff individuals simply because they are unknown; and (4) the right to "pat
down" an individual does not include the right to search pockets.

(Id. 1I 26(a)-(d).)

Plaintiff states that he was unlawfully arrested when Defendant Huber handcuffed him
without probable cause, that his constitutional rights were violated when Defendant
Huber threatened to arrest him if he ever knocked on doors again, and that Defendant
Huber's search of his pockets was unlawful. (ld. <ll<J[ :27-29.) Count II of the complaint
simply asserts: "The actions of the Defendant Trooper Huber are also in violation of the
laws of Pennsylvania, for which the Plaintiff seeks compensatory damages and punitive
damages." (Id. 1I 31.) However, the complaint does not specify which Pennsylvania laws
Defendant Huber violated, or what specific actions he took that constitute violations of
those laws.
On November 20, 2014, Defendant Borough of Northern Cambria filed a motion to
dismiss, and Defendants Huber and the Pennsylvania State Police filed a partial motion to
dismiss on November 21, 2014. On January 12, 2015, Plaintiff filed a brief in which he
consented to the dismissal of all Defendants, with the exception of Defendant Huber. He
also consented to the dismissal of his claims for injunctive and declaratory relief. On
February 6, 2015, the Court granted Plaintiff's counsel's motion to withdraw as Plaintiff's
attorney and entered a stay for forty-five days to allow Plaintiff time to obtain substitute
counsel.

(ECF No. 22.)

On July 31, 2015, the Court granted Defendant Borough of
4

Northern Cambria's motion to dismiss and granted Defendants Huber and the
Pennsylvania State Police's partial motion to dismiss.

(ECF No. 27 at 3.)

With the

exception of Plaintiff's claims for unlawful arrest and unlawful search against Defendant
Huber, the Court dismissed all other claims and Defendants from the action with
prejudice. (Id.)
Before the Court entered its July 31, 2015, order, Defendants Borough of Northern
Cambria, Cambria County, Trooper Huber, and the Pennsylvania State Police filed a joint
motion to dismiss for Plaintiff's failure to prosecute, (ECF No. 24), along with a brief in
support of their motion (ECF No. 25), on April 21, 2015.

Plaintiff filed a brief in

opposition to Defendants' motion on June 8, 2015. (ECF 1\o. 26.) On August 18, 2015,
Plaintiff filed a motion for reconsideration of the Court's July 31, 2015, order (ECF No. 28),
to which Defendants have not responded. These matters are now ripe for adjudication.

IV.

Applicable Law
A.

Motion for Reconsideration

A court may grant a motion for reconsideration if the moving party shows: (1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court issued its order; or (3) the need to correct a clear error of law or
fact or to prevent a manifest injustice. Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999); see also A&H Sportswear Co. v. Victoria's Secret Stores, Inc., No.
94-CV-7408, 2001 U.S. Dist. LEXIS 11488, at *3 (E.D. Pa. May 1, 2001).

Motions for

reconsideration provide district courts the opportunity to correct their own alleged errors;

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they are not intended to provide litigants "a second bite at the apple."

Bhatnagar v.

Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995); see also Ogden v. Keystone
Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002) ("[A] motion for reconsideration is not
to be used as a means to reargue matters already argued and disposed of or as an attempt
to relitigate a point of disagreement between the Court and the litigant.").
B.

Motion to Dismiss for Failure to Prosecute

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an
action-either sua sponte or upon a motion-"[i]f the plaintiff fails to prosecute or to
comply with [the Federal Rules of Civil Procedure] or a court order." FED. R. Ov. P. 41(b);

Abulkhair v. New Century Fin. Servs., 467 Fed. Appx. 151, 153 (3d Cir. 2012). The United
States Court of Appeals for the Third Circuit has held that a district court should consider
and balance the following factors when determining whether 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) (emphasis in original).
The Third Circuit has recognized that "Poulis [does] not provide a magic formula" for
balancing the six factors and that "not all of the Poulis factors need be satisfied in order to
dismiss a complaint." Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992); Briscoe v. Klaus,
538 F.3d 252, 263 (3d Cir. 2008).

Rather, a district court has discretion to determine

6

whether dismissal is warranted, and the court should make its decision "in the context of
[its] extended contact with the litigant." Mindek, 964 F.2d at 1373.

V.

Discussion

A.

Plaintiff's Motion for Reconsideration

Plaintiff requests that the Court reconsider its July 31, 2015, order dismissing all of
Plaintiff's claims and Defendants from the action, with the exception of Plaintiff's claims
for unlawful arrest and unlawful search against Defendant Huber. (ECF No. 28 ot 1.) In
support of his request, Plaintiff states that his counsel did not provide him with a copy of
the filed complaint until he withdrew from the case. (Id.) Plaintiff further states that he
was unaware that his counsel filed a brief consenting to the dismissal of Defendants and
his claims for declaratory judgment and injunctive relief until two months after the brief
was filed. (Id. at 1-2.) He asserts that the Court erred by dismissing all Defendants except
for Defendant Huber from the action with prejudice and dismissing Plaintiff's claims for
declaratory judgment and injunctive relief with prejudice because he was not afforded an
opportunity to amend his complaint. (!d. at 2.)
The Court will deny Plaintiff's motion for reconsideration because he has not
shown a manifest error of law. Plaintiff was represented by counsel when he stated that
he "consents to the dismissal of his claims for injunctive and declaratory relief, which has
the practical effect of dismissing all of the defendants except Trooper Huber." (ECF No.
l4 at 5.) It is well settled that "each party is deemed bound by the acts of his lawyer-agent

and is considered to have notice of all facts, notice of which can be charged upon the
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attorney." Link v. Wabash R. Co., 370 U.S. 626, 634 (1962) (internal quotations omitted).
Although Plaintiff's prior counsel has now withdrawn, Plaintiff "voluntarily chose this
attorney as his representative in the action, and he cannot now avoid the consequences of
the acts or omissions of this freely selected agent." Id. at 633-34; see also Poulis, 747 F.2d at
868. Plaintiff has failed to establish that an intervening change in the controlling law
occurred, that new evidence is now available, or that the Court's dismissal was a manifest
error of law or fact. See Max's Seafood Cafe by Lou-Ann, Inc., 176 F.3d at 677. The Court
must therefore deny Plaintiff's motion for reconsideration. See, e.g., Burton v. Prison Health

Servs., Inc., No. 92-CV-574, 1993 U.S. Dist. LEXIS 3781, at *2-3 (E.D. Pa. Mar. 24, 1993)
(denying the plaintiff's motion for reconsideration and dismissing the complaint with
prejudice because "the defendant's motion to dismiss ... was 'unopposed' in the legal
sense, since plaintiff had not denied or refuted any of the factual allegations in the motion
to dismiss"); see also Hamilton v. Murray, No. 2:15-CV-2085, 2015 U.S. Dist. LEXIS 139646,
at *2 (D.S.C. Oct. 14, 2015) (noting that the Fourth Circuit affirmed the district court's
denial of the plaintiff's motion for reconsideration on the basis that she agreed to dismiss
a counterclaim); In re Prempro Prods. Liab. Litig. Sharon Bland v. Wyeth, Inc., No. 4:03-CV1507, 2009 U.S. Dist. LEXIS 29908, at *1-2 (E.D. Ark. Apr. 7, 2009) (denying the plaintiff's
motion for reconsideration after she consented to dismissal).
B.

Defendants' Motion to Dismiss for Failure to Prosecute

In support of their motion to dismiss for Plaintiff's failure to prosecute,
Defendants argue that the complaint must be dismissed with prejudice for two reasons.
(ECF No. 25 at 1.) First, Defendants state that the Court entered a forty-five-day stay on
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February 3, 2015, to allow Plaintiff time to obtain substitute counsel. (Id. at 1-2.) By
Plaintiff's deadline of March 20, 2015, he failed to secure counsel and failed to advise the
parties and the Court of his inability to secure counsel. (!d. at 2.) Second, Defendants
claim that after Plaintiff's counsel withdrew from the case, Plaintiff was sent a notice that
the Initial Rule 16 Case Management Conference was scheduled for April 7, 2015. (ld.)
Defendants contend that Plaintiff failed to appear at the conference and did not make any
attempt to contact the parties, their counsel, or the Court to advise of his inability to
attend. (Id.)
In applying the Poulis factors, Defendants state that Plaintiff is solely responsible
for complying with the Court's orders. (Id. at 4.) They claim that they were prejudiced by
Plaintiff's failure to attend the conference because they remain "in limbo" over litigation
and "have continued to endure the anxiety and pressures associated with civil litigation."
(ld.) Defendants assert that Plaintiff has a history of dilatoriness and acted willfully or in

bad faith because he failed to secure new counsel and failed to attend the conference
without providing any notice to the Court and counsel. (ld. at 5.) Defendants state that
because Plaintiff has had ample time to obtain substitute counsel, the only sanction that
will be effective is dismissal. (I d.) They argue that Plaintiff's claims are meritless and
must be dismissed. (Id. at 6.)
In response, Plaintiff argues that Defendants misrepresent the Court's February 3,
2015, order because it did not mandate that he obtain counsel or take further action if he
was unable to secure substitute counsel. (ECF No. 26 at 2.) His understanding of the
Court's order is that he may represent himself. (I d.) Plaintiff also explains that he did not
9

receive a copy of the Court's notice of the April 7, 2015, conference and therefore did not
attend. (!d. at 1.) In applying the Poulis factors, Plaintiff states that he should not bear
responsibility for failing to attend the conference because he did not receive notice of it.
(Id. at 3.)

Plaintiff argues that his failure to attend the conference did not prejudice

Defendants and does not constitute a history of dilatoriness.

(Id. at 3-4.)

Plaintiff

contends that his conduct was not willful because he attempted to obtain counsel and did
not have notice of the conference.

(ld. at 4-5.)

Plaintiff states that dismissal of his

complaint is not an effective sanction and that his claims are meritorious. (ld. at 5-6.)
The Court must reject as meritless Defendants' first argument that Plaintiff has
failed to prosecute his case because he did not obtain substitute counsel. In its February 3,
2015, order, the Court stated that "a stay is entered in this case for 45 days to allow the

Plaintiff time to obtain substitute counsel." (ECF No. 22.) The Court did not indicate that
Plaintiff was required to obtain substitute counsel. Because there is no requirement that a
plaintiff be represented by counsel in an action arising under 42 U.S.C. § 1983, the Court
would not have entered such an order. Accordingly, the Court cannot conclude that
Plaintiff has failed to prosecute his case because he has not obtained substitute counsel.
The Court must also reject as meritless Defendants' second argument that Plaintiff
has failed to prosecute his case because he did not attend the Initial Rule 16 Case
Management Conference on April 7, 2015. According to the docket entries of this case, the
Court entered a text order setting the conference on February 6, 2015. However, the order
was not sent to Plaintiff. As a result, Plaintiff did not have notice of the conference and
could not have provided the Court or the parties with notice of his inability to attend.
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Moreover, a case-management order has not yet been entered in this case.

Plaintiff

therefore cannot be held responsible for failing to commence the discovery process. The
Court will therefore deny Defendants' motion to dismiss for Plaintiff's failure to prosecute
the case.

VI.

Conclusion
For the reasons stated above, the Court will deny Defendants' motion to dismiss

for Plaintiff's failure to prosecute and will deny Plaintiff's motion for reconsideration of
the Court's July 31, 2015, order.

An Initial Rule 16 Scheduling Conference will be

scheduled for February 4, 2016, at 2:30p.m.
An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL SHELIGA,

)
)

Plaintiff,

CIVIL ACTION NO. 3:14-209

)
)

v.

JUDGE KIM R. GIBSON

)
)

BOROUGH OF NORTHERN
CAMBRIA, CAMBRIA COUNTY
TROOPER HUBER, PENNSYLVANIA
STATE POLICE,

)
)

)
)

)

Defendants.

)

ORDER
AND NOW, this 14th day of January, 2016, upon consideration of Defendants'
motion to dismiss for Plaintiff's failure to prosecute (ECF No. 24) and Plaintiff's motion
for reconsideration of the Court's July 31, 2015, order (ECF No. 28), and in accordance
with the attached memorandum, IT IS HEREBY ORDERED as follows:
(1) Defendants' motion to dismiss for Plaintiff's failure to prosecute (ECF No. 24)
is DENIED.
(2) Plaintiff's motion for reconsideration of the Court's July 31, 2015, order (ECF
No. 28) is DENIED.
IT IS FURTHER ORDERED that an Initial Rule 16 Scheduling Conference is
scheduled for February 4, 2016, at 2:30p.m.

BY THE COURT:

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE

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