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.
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
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,
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'
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
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
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.
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 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,
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)
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
Authorizations permitting access to his medical records.*fn11 Plaintiff
did not ...