Mack v. Turner et al

Filing 108

MEMORANDUM OPINION AND ORDER: The Court ORDERS that the Plaintiff's 105 MOTION for Reconsideration of the Court's 104 Order of Dismissal for Failure to Prosecute Based on Plaintiff's Excusable Neglect be DENIED. Signed by Judge Irene C. Berger on 3/3/2017. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

BENNIE AUSTIN MACK, JR.,
Plaintiff,
v.

CIVIL ACTION NO. 5:15-cv-03589

OFFICER CHARLES TURNER, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiff’s Motion for Reconsideration of Court’s Order of
Dismissal for Failure to Prosecute Based on Plaintiff’s Excusable Neglect (Document 105), the
Defendants’ Response (Document 106), and the Plaintiff’s Reply to the Response of the Defendants
to Plaintiff’s Motion for Reconsideration of Court’s Order of Dismissal for Failure to Prosecute
Based on Plaintiff’s Excusable Neglect (Document 107). On January 25, 2017, after the Plaintiff
failed to appear at the Pretrial Conference and Final Settlement Conference scheduled for 9:00
a.m., the Court entered an Order of Dismissal (Document 104), granting the Defendants’ oral
motion to dismiss for failure to prosecute. As the Court noted in that order, the Plaintiff left a
voicemail for the law clerk assigned to his case at 1:42 p.m., on January 25, 2017, stating that he
believed an attorney he had contacted would appear at the hearing.1 The Plaintiff now seeks
reconsideration of the dismissal of his claims.

1 The complete message was as follows:
“Ms. Wildfire, good morning, this is Bennie Austin Mack. I have a case before
Judge Berger. I was looking online, on PACER, and I saw that there was a pretrial conference scheduled for this morning. I had been in contact with attorney

ARGUMENT
The Plaintiff asserts that he did not receive the Court’s Scheduling Order (Document 50),
entered on April 11, 2016, but instead learned of deadlines and requirements only through the
Defendants’ pleadings. He states that he did not receive mail from the Court while he was in
segregated housing at FCI-Beckley from February 29, 2016 through September 8, 2016. He
indicates that he learned of various filings only when he reviewed his case on PACER on January
25, 2017. He claims that he first saw the Court’s Scheduling Order (Document 50) on January
27, 2017, when he retrieved it from PACER.

The Plaintiff further states that he sought

representation from attorney Dwight Staples following mediation on January 17, 2017, and
expected Mr. Staples to contact him within a day, but had not heard from him as of January 27,
2017.
The Defendants filed a response, pointing out that believing an attorney would attend does
not excuse the Plaintiff’s failure to attend in person, as required by the Court’s scheduling order.
In addition, the Defendants noted the conflict between the Plaintiff’s voicemail, asserting that he
believed an attorney would be present, and his motion, wherein he argued that he was unaware of
the hearing date. They argue that even if the Plaintiff only learned of dates and deadlines through
pleadings filed after his release from segregated housing on September 8, 2016, at least two such
filings included the January 25, 2017 date of the Pretrial Conference. (Resp. at 2-3, citing

Dwight Staples, and I guess he and I got our signals crossed. I was under the
impression that he would be attending. Obviously, he did not. I just wanted to
call and let the Judge know that I was not ignoring that requirement to be there.
I just got my signals crossed with Mr. Staples. If you would contact me and let
me know what we can do to resolve this in some way, I would appreciate it. I
certainly would not want the Court to think in any way that I’m disrespecting their
edicts or orders. I can be reached at 919-986-1972. My email address is
[e-mail]. Thank you very much. I’ll be awaiting your call.”

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Documents 74 and 93.) The Defendants further indicate that they contacted the PACER Service
Center and learned that the Plaintiff opened a PACER account in December 2016, though they
were unable to learn the details of when he accessed his account.
In his reply, the Plaintiff notes that he expressed concern that the Defendants and others at
the Bureau of Prisons would interfere with his ability to prosecute this case in a Motion for
Temporary Restraining Order and Preliminary Injunction (Document 25). He again states that
he did not receive the Court’s scheduling order. He argues: “It is obvious, given the defendants’
numerous motions for dismissal based on the Plaintiff’s non-compliance with the dictates of the
‘Scheduling Order,” that the defendants through and by their agents and/or assigns willfully and
designedly attempted to obstruct justice by denying the Plaintiff access to his legal mail and by
unjustifiably placing the Plaintiff in Segregated Housing to restrict his ability to prosecute the case
at bar.” (Reply at 4.) He also again states that he “was under the impression that Attorney
Dwight Staples was working on [his] behalf, although Attorney Staples had not given the Plaintiff
any written affirmation of acceptance of the case.” (Id. at 2.) Indeed, according to the Plaintiff’s
account, Mr. Staples met with the Plaintiff, requested additional documentation regarding the case,
and stated he would contact the Plaintiff to inform him of whether he would agree to represent
him. The Plaintiff did not hear from Mr. Staples until February 2, 2017, when Mr. Staples
informed him that he would not represent him.

DISCUSSION
The Court finds that the Plaintiff’s contradictory and self-serving explanations do not
provide grounds for reconsideration of the dismissal of this action for failure to prosecute. The

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Plaintiff’s assertions do not meet the standard for excusable neglect, nor is there any other
justification that would warrant reconsideration of the Court’s order dismissing this matter.
Excusable neglect is an equitable concept, and courts may consider a variety of factors, including
“the danger of prejudice to [the opposing party], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993) (considering excusable neglect in the
bankruptcy context, with reference to the similar standards in the Federal Rules of Civil
Procedure). Prejudice to the opposing party and the division of fault between a client and his
attorney are also considerations cited by the Fourth Circuit for dismissals for failure to prosecute.
Bush v. U.S. Postal Serv., 496 F.2d 42, 44 (4th Cir. 1974).
The Plaintiff’s previous failure to meet discovery and pre-trial obligations enhanced the
importance of the pre-trial conference as a final opportunity for the Defendants and the Court to
obtain the information that would normally be provided in a proposed pretrial order and other
disclosures. Consequently, his failure to appear was particularly prejudicial to the Defendants.
This Court issued an order less than two weeks before the pretrial conference, warning the Plaintiff
that failure to produce certain information long sought by the Defendants, including disclosures
and a pretrial order, could result in dismissal. (Document 98). Though he filed a document
providing some of the requested information (Document 102), no pretrial order was filed, and the
Defendants might reasonably have sought additional information based on the disclosures. With
trial scheduled to begin less than two weeks after the pretrial conference, the prejudice to the
Defendants could not easily be remedied.

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Because the Plaintiff is pro-se, notwithstanding his recent attempt to obtain counsel, there
is no concern here regarding the potential injustice to a party who relied on an attorney to handle
a case appropriately and remained unaware of negligent conduct. The Plaintiff was released on
November 25, 2016, per the Inmate Locator of the Bureau of Prisons website. The Defendants
indicate he opened a PACER account in December 2016. Even without that account, he could
have sought a docket sheet2 and any documents he had not received by writing to the Clerk of the
Federal District Court for the Southern District of West Virginia, as inmates and pro-se litigants
routinely do. As the Defendants point out, two motions that they sent to the Plaintiff included the
date of the pretrial conference. In short, even if the Plaintiff did not receive the scheduling order,
he should have known about the pretrial conference. At the very least, he had information that
should have prompted him to seek any documents he had not received.
Further, the Plaintiff’s explanations for his failure to appear are inconsistent, which
suggests that he is not acting in good faith. His voicemail states that he believed an attorney
would attend the hearing.3 His motion for reconsideration states that he did not know about the
hearing. His reply to the Defendants’ response shifts the blame to the Defendants for allegedly
preventing him from receiving mail while he was in segregated housing. The Plaintiff suggests
that he should not be held responsible for complying with Court orders and deadlines because he
sought counsel in the weeks before trial—despite not having received any indication that the
attorney would accept the case. As noted above, the Defendants had filed several motions to

2 The docket sheet, whether viewed on PACER or in paper form provided by the Clerk’s Office, includes the date of
the pretrial and final settlement conference within the description of the scheduling order, even without reviewing the
full document.
3 The scheduling order clearly requires that parties, as well as attorneys, be present at the pretrial conference and final
settlement hearing.

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dismiss and for sanctions based on the Plaintiff’s failure to comply with deadlines and disclosure
requirements, which should have prompted a more serious attempt to comply with such deadlines.
Further, failure to appear at the pretrial conference and comply with deadlines so late in
the case is particularly disruptive to the judicial proceedings. Maintaining the case following the
Plaintiff’s failure to appear at the pretrial and final settlement conference would likely have
required continuing the trial date.

Although the Court recognizes the legal preference for

resolving cases on their merits, given the prejudice to the Defendants, and the Plaintiff’s
inconsistent explanations, the Court cannot find excusable neglect. The Court, therefore, finds
that the Plaintiff’s motion for reconsideration should be denied.

CONCLUSION
WHEREFORE, after thorough review and careful consideration, the Court ORDERS that
the Plaintiff’s Motion for Reconsideration of the Court’s Order of Dismissal for Failure to
Prosecute Based on Plaintiff’s Excusable Neglect (Document 105) be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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March 3, 2017