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WAAHID MUSLIM v. FRAME

May 24, 1994

WAAHID MUSLIM a/k/a DAVID D. RICHARDSON
v.
THOMAS G. FRAME, Warden, et al.


THOMAS J. RUETER, UNITED STATES MAGISTRATE JUDGE


The opinion of the court was delivered by: THOMAS J. RUETER

REPORT AND RECOMMENDATION

THOMAS J. RUETER

 U.S. Magistrate Judge

 MAY 24, 1994

 Presently before me are six (6) separate pro se actions, filed pursuant to 42 U.S.C. ┬ž 1983, against Thomas G. Frame, Warden of Chester County Prison, and two other prison officials. The six cases were consolidated under the above-captioned number. At the time he filed these actions, plaintiff was a pretrial detainee at Chester County Prison. In each of the actions, plaintiff complains about conditions at the prison. He has since been released from custody.

 On January 7, 1994, defendants filed a motion to dismiss plaintiff's claims for failure to state a claim upon which relief could be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Because defendants had attached affidavits and other materials to the motion, I ordered that it would be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(b). Plaintiff did not respond in any way to the motion, nor did he attend oral argument scheduled for the motion. For the following reasons, it is recommended that defendants' motion be granted as to all but one of the actions, because the undisputed facts demonstrate that plaintiff is not entitled to relief in five of the six cases. Furthermore, the Court recommends that all of the claims in this consolidated action be dismissed pursuant to Fed.R.Civ.P. 41(b) because of plaintiff's failure to prosecute this case.

 I. FACTS AND PROCEDURAL HISTORY

 Plaintiff was arrested on June 18, 1992, in Chester County, on charges of robbery, theft, receiving stolen property, conspiracy, possessing instruments of crime, simple assault, and aggravated assault. (Case No. 0296092). *fn1" The plaintiff was detained pending trial on or about July 6, 1992, at the Chester County Correctional Facility after he was charged with escape, resisting arrest and criminal mischief. (Case No. 0280092). He remained at Chester County Prison until August 3, 1993, when he was transferred to Northampton County Prison for security reasons (McFadden Aff. P 41, Exhibit "A" to Motion to Dismiss). The plaintiff was housed in Northampton Prison until October 11, 1993, when he was returned to Chester County Prison. Plaintiff was released from pretrial incarceration on October 18, 1993. (McFadden Aff. P 6). Counsel for plaintiff in a related civil action confirmed that plaintiff no longer is detained at Chester County Prison and is free on bail. (N.T., 4/5/94 at 7).

 The plaintiff, while detained at Chester County Prison, filed the six (6) separate actions *fn2" alleging the following claims:

 1) 93-3734: Plaintiff averred that while he was a pretrial detainee at Chester County Prison, he was under the "immediate threat" of being held in a two-man cell which was inadequately spaced and poorly ventilated. (Complaint, p.3, P IV). Plaintiff further claimed that the prison dayroom had faulty spacing and ventilation. (Complaint, p.4, P IV). As a result, the plaintiff sought compensatory and punitive damages, as well as declaratory relief. (Complaint, p.4, P V).

 2) 93-3735: Plaintiff alleged that while in prison he was forced to eat pork or food made with pork products which was against his religion. (Complaint, p.3, P IV). As a result, he requested injunctive relief and damages. (Complaint, p.4, P V).

 3) 93-3736: Plaintiff complained that the prison law library was inadequately stocked with materials and it lacked sufficient personnel. (Complaint, p.3, P IV). In addition, he claimed that he was forced to purchase legal paper, envelopes, and writing utensils. (Complaint, p.4, P IV). Therefore, he demanded compensatory damages and declaratory relief. (Complaint, p.3, P V).

 4) 93-3737: Plaintiff averred that he was forced to shower in front of other inmates without wearing his undershorts. He stated that showering "without guarding his modesty" violated his religious beliefs. (Complaint, pp.3-4, P IV). As a result, the plaintiff sought compensatory and punitive damages along with injunctive relief. (Complaint, p.4, P IV).

 6) 93-4374: Plaintiff claimed that he was transferred without notice to Northampton County Prison as a retaliatory measure against him by Chester County Prison officials for the plaintiff's complaints. (Complaint, pp.3-4, P IV). The plaintiff sought a transfer back to Chester County Prison and compensation for his mental anxiety. (Complaint, p.4, P V).

 After ordering these actions to be consolidated, the Honorable Louis H. Pollak referred them to Honorable William F. Hall for report and recommendation on September 9, 1993. On September 10, 1993, plaintiff wrote to Judge Pollak and apologized for the inconvenience he caused the Court as a result of his many complaints. He told the Court that he was "in the process of withdrawing" the complaints that contain minor issues. Indeed, plaintiff stated that he filed motions to withdraw two of his cases. However, the docket does not reflect that plaintiff filed motions to withdraw claims. *fn3"

 The defendants, on January 7, 1994, filed motions to dismiss the complaints for failure to state claims upon which relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6). No timely response was filed by plaintiff in accordance with Local Rule 20(c). On March 7, 1994, this matter was referred to me for a report and recommendation after the retirement of Judge Hall. Since the defendants' motion was to be treated as a motion for summary judgment, I issued an order dated March 21, 1994 ordering plaintiff to respond to defendants' affidavits and other proof in order to determine whether a genuine issue of material fact existed for trial. The Court also advised the plaintiff of the requirements of Federal Rule of Civil Procedure 56(e). *fn4" Plaintiff was given until April 4, 1994 to respond to defendants' motion. This notice was sent by mail to plaintiff's last known address on March 21, 1994. *fn5"

 In order to provide both parties with a fair opportunity to present their claims, the Court gave notice of oral argument on the motion for summary judgment to be held on April 5, 1994. *fn6" However, plaintiff failed to appear at this hearing. (N.T. 4/5/94 at 1-5). On April 12, 1994, counsel for plaintiff wrote a letter to the Court and advised that plaintiff changed his address. In this letter, counsel stated that the plaintiff told him that he had not received the prior court notices. Upon receipt of the letter, my chambers immediately mailed to the plaintiff's new address a copy of my order of March 21, 1994 ordering plaintiff to respond to defendants' motion to dismiss and advising him of the requirements of Fed.R.Civ.P. 56(e). Plaintiff still has not responded to defendants' motion for summary judgment.

 II. FAILURE TO PROSECUTE

 Federal Rule of Civil Procedure 41(b) provides in pertinent part:

 
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.

 The Supreme Court has held that when a plaintiff fails to prosecute a case, the district court has the inherent power to dismiss sua sponte without affording notice or providing an adversary hearing to the plaintiff. Link v. Wabash Railroad Co., 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962). Imposition of this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendar of the district court. Id. at 629-30. In Link, supra, the Supreme Court affirmed the district court's dismissal of an action because of counsel for plaintiff's failure to attend a pretrial conference. Id. at 628-29.

 When, as here, a pro se prisoner fails to adhere to readily comprehended court orders, the district court has authority to dismiss for want of prosecution. Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991); Trexler v. Dombrow, 835 F. Supp. 247 (E.D.Pa. 1993). In Jourdan, supra, the pro se prisoner did not comply with discovery and pretrial motion cutoff dates. The district court dismissed the plaintiff's action for failure to comply with these deadlines. In affirming the order, the court of appeals ruled that a prisoner suing pro se was not entitled to special consideration in determining whether to dismiss a complaint for failure to adhere to readily comprehended court deadlines. The court reasoned that a lay person can comprehend straightforward procedural requirements as easily as a lawyer.

 Consistent with the reasoning in Jourdan, this Court has held that a pro se plaintiff's failure to respond to a summary judgment motion provides a basis for dismissing an action for failure to prosecute. See Wade v. Wooten, No. 90-2373, 1993 W.L. 298715 at *6 (E.D.Pa. July 30, 1993); Gay v. Wright, No. 90-0770, 1990 W.L. 145553 at *3-4 (E.D.Pa. Sept. 27, 1990); Padro v. Heffelfinger, 110 F.R.D. 333-35 (E.D.Pa. 1986).

 In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), our Court of Appeals instructed that in deciding whether to dismiss a case for want of prosecution, the district court should consider six factors. Id. at 867. These factors are (1) the extent of the party's personal responsibility; (2) prejudice to the adversary; (3) whether there has been a history of dilatoriness in the case; (4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness of alternative sanctions; and (6) the meritoriousness of the claim or defense. Id. at 868. All of these six factors need not be satisfied in order to justify dismissal of plaintiff's claim. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).

 First, Personal Responsibility

 In this case plaintiff has proceeded pro se. Thus, he is solely responsible for his failure to respond to the motion for summary judgment. Since plaintiff had enough energy and skill to file seven separate lawsuits, he surely had the ability to respond in some fashion to the defendants' motion.

 Second, Prejudice to the Adversary

 Defendants, public officials of Chester County Prison, have been prejudiced by plaintiff's failure to respond to their motion. By failing to respond for over four months, plaintiff has made it difficult for this Court to determine whether there are any genuine issues of fact which may eliminate the need for a lengthy trial. Plaintiff has made numerous allegations against the defendants. They have had to retain an attorney and assist him in preparing a defense. The defendants are entitled to ...


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