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ROMAN v. CITY OF READING

March 22, 2004.

JASON ROMAN, Plaintiff
v.
CITY OF READING and READING POLICE DEPARTMENT, Defendants



The opinion of the court was delivered by: CYNTHIA RUFE, District Judge

MEMORANDUM OPINION AND ORDER

This § 1983 action comes before the Court on Defendants' Motion to Dismiss Pursuant to Rule 37. For the reasons below, Defendants' Motion is granted and the Complaint is dismissed with prejudice.

I. BACKGROUND

  The following is taken from the Complaint and evidence of record and is undisputed unless otherwise noted. Plaintiff Jason Roman initiated this action pro se against Defendants the City of Reading and the Reading Police Department. On June 14, 2002, at approximately 1:30 a.m., Plaintiff was driving through Reading, Pennsylvania when "a hail of bullets" struck his car. Plaintiff sped away and, after driving two or three blocks, observed several police cars and pulled over to report the shooting. Plaintiff exited his vehicle and entered a store where several police officers were investigating a burglary. When Plaintiff, who is African-American, reported the shooting to a white police officer, the officer instructed him to wait in his car and that someone would be with him shortly. Plaintiff returned to his car and waited for approximately 15 minutes, but no one came to Page 2 speak with him. Plaintiff then telephoned a friend and asked her to call 911 to report the shooting and request police assistance. When no emergency response materialized, Plaintiff twice telephoned 911 and requested police assistance.

  Plaintiff waited approximately forty-five minutes in his car. Two police officers present for the burglary investigation then approached him and listened to Plaintiff's report of the shooting incident. Plaintiff told the officers that he did not see anyone fire a weapon. The officers visually examined Plaintiff's vehicle but took no physical evidence. One of the officers told Plaintiff he was "lucky" that he had not been killed and that "there are a lot of shootings in that part of town." The other officer said, "the attackers were probably using the car for target practice." The encounter lasted approximately fifteen minutes and concluded with the officers giving Plaintiff their card and an incident number. The police performed no follow-up investigation.

  Plaintiff filed his Complaint in the instant action on July 18, 2002. To summarize, Plaintiff alleges a substantive due process violation due to Defendants' failure to provide constitutionally sufficient protective services. In addition, he alleges that Defendants, pursuant to a policy or custom, treated him differently because of his race in violation of the Equal Protection Clause. Finally, Plaintiff alleges that Defendants' conduct places unreasonable restrictions on his constitutional right to travel. Plaintiff advances these claims, which are grounded in the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983. Jurisdiction is premised on 28 U.S.C. § 1331, 1343.

  Today's decision is largely a product of its procedural history, so the Court will recite that history in some detail. Defendants filed a motion to dismiss on September 18, 2002. On October 29, 2002, over three weeks after expiration of the deadline for filing a response to Defendants' Page 3 motion, Plaintiff sought a thirty-day extension of time in which to respond. Plaintiff claimed that various health problems were impeding his ability to prepare a response and that he was attempting to retain counsel for assistance. Defendants advised the Court in a November 5, 2002 letter that they would not oppose Plaintiff's request. Accordingly, the Court extended Plaintiff's deadline to December 6, 2002.

  When Plaintiff failed to file a response by December 13, 2002 — one week after the extended deadline — the Court granted Defendants' motion to dismiss as uncontested under Local Rule of Civil Procedure 7. l(c) and dismissed the Complaint with leave to file an Amended Complaint by January 2, 2003. Plaintiff failed to file an Amended Complaint within the time permitted.

  On January 27, 2003, Plaintiff filed an opposition to Defendants' motion to dismiss, followed a few days later by an addendum thereto. On February 10, 2003, Defendants moved to strike Plaintiff's opposition and addendum. The Court granted Defendants' motion on February 13, 2003 because Plaintiff's opposition was moot, there being no pending motion to oppose.

  On February 26, 2003, Plaintiff moved to vacate the Court's December 13, 2002 Order dismissing the Complaint. Plaintiff claimed that he had never received copies of the Order extending his response deadline to December 6, 2002 or the Order dismissing the Complaint, and that he filed his opposition to the motion to dismiss believing it was still pending. He filed his opposition to Defendants' motion to dismiss so late, he explained, due to continuing health problems.*fn1 Page 4

  At the time, according to the pleadings and the docket, Plaintiff's Allentown mailing address had not changed since he filed the Complaint. By Plaintiff's own admission, he had received some Court filings at his Allentown mailing address. Notwithstanding this curious set of circumstances, and mindful of its obligation to be somewhat lenient with pro se litigants, the Court accepted Plaintiff's explanation as a sufficient basis upon which to vacate its prior Order dismissing the Complaint.*fn2 In an April 3, 2003 Order, the Court reinstated the Complaint and Defendants' motion to dismiss, vacated its Order striking Plaintiffs' pleadings in opposition to the motion to dismiss, and took Defendants' motion and Plaintiff's opposition papers under advisement. As explained in a footnote to that Order, the Court fashioned this relief in order to facilitate the efficient administration of justice.*fn3

  On April 21, 2003, the Court issued a Memorandum Opinion and Order granting in part and denying in part Defendants' motion to dismiss.*fn4 The Court dismissed Plaintiff's substantive due process claim, but it denied the motion as to the equal protection and right to travel claims because Defendants' motion had failed to address them. Although these claims were perhaps defective as well, the Court declined to "take up the yoke where defense counsel leaves off."*fn5 Accordingly, the Court ordered Defendants to file their Answer and set an August 15, 2003 discovery deadline and a September 15, 2003 dispositive motions deadline. Defendants filed a timely Answer. Page 5

  The discovery period and the motions deadline came and went without any filings. Accordingly, on September 22, 2003, the Court ordered the parties to file a status update. Defendants responded in an October 3, 2003 letter to the Court, explaining that neither party had conducted any discovery and requesting additional time in which to do so. Plaintiff failed to respond to either the Court's Order or Defendants' letter. On October 22, 2003, the Court entered a Supplemental Scheduling Order directing Plaintiff and Defendants to file pretrial memoranda by March 9 and March 19, 2004, respectfully, and setting a March 25, 2004 pretrial conference and April 6, 2004 trial pool. The Court's Order did not address Defendants' request for an extension of discovery.

  Around this time, Defendants took the initiative to engage Plaintiff in the discovery process. On October 10, 2003, Defendants served their First Set of Interrogatories Directed to Plaintiff, their First Request for Production of Documents and Things Directed to Plaintiff ("RFPs") and a Notice of Deposition for November 3, 2003. In addition, Defendants served their Rule 26(a)(1) initial disclosure statement and requested that Plaintiff reciprocate.

  Plaintiff failed to respond to Defendants' Interrogatories and RFPs by the November 10, 2003 deadline.*fn6 Plaintiff also failed to appear for his November 3, 2003 deposition. He explained in a letter to defense counsel that he mistakenly believed that the deposition was scheduled for December 3, 2003 and that he was "confused lately as to [his] times and dates."*fn7 Plaintiff asked defense counsel to contact his newly retained attorney, W. Thomas Anthony, Jr., in order to reschedule the deposition, and Mr. Anthony confirmed this arrangement in a November 4, 2003 letter Page 6 to defense counsel.

  Defendants sent a November 11, 2003 letter to Mr. Anthony requesting Plaintiff's overdue discovery responses and enclosing a second notice of deposition for November 17, 2003. On Friday, November 14, 2003, Mr. Anthony notified defense counsel that he could not attend Plaintiff's deposition on Monday, November 17, 2003 but that he was available on December 3, 2003. Accordingly, Defendants served a third notice of deposition for December 3, 2003 and again requested Plaintiff's written responses to Interrogatories and RFPs and Plaintiff's Rule 26(a)(1) initial disclosures.*fn8

  Defendants deposed Plaintiff on December 3, 2003. Near the conclusion of the deposition, defense counsel reiterated her request that Plaintiff serve written responses to Defendants' Interrogatories and RFPs. Plaintiff and Mr. Anthony both denied ever receiving copies of Defendants' discovery requests.*fn9 Therefore, counsel for Defendants handed additional copies of Defendants' Interrogatories and RFPs to Mr. Anthony, who stated on the record and in Plaintiff's presence, "I will make sure he fills out that stuff and gets you the information."*fn10

  On December 30, 2003, Defendants followed up on Plaintiff's overdue discovery responses and initial disclosures and requested that Plaintiff complete HIPAA Compliant Page 7 Authorizations permitting access to his medical records.*fn11 Plaintiff did not ...


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