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SPENCER v. WEXFORD HEALTH SERVICES

United States District Court, M.D. Pennsylvania


May 19, 2005.

WAYNE SPENCER, Plaintiff,
v.
WEXFORD HEALTH SERVICES, INC., et al., Defendants.

The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge

ORDER

AND NOW, this 19th day of May, 2005, upon consideration of the motion for summary judgment (Doc. 32) filed on February 14, 2005, by the remaining defendant Wexford Health Services, Inc., on plaintiff's Eighth Amendment claims brought pursuant to 42 U.S.C. § 1983, and of the order of court dated May 9, 2005 (Doc. 37), in which plaintiff was directed to file a brief in opposition to the motion on or before May 16, 2005, and advised that failure to comply could result in the granting of the motion, see L.R. 7.6 ("Any party opposing any motion shall file a responsive brief . . . [or] shall be deemed not to oppose such motion."); see also FED. R. CIV. P. 56, or dismissal of the above-captioned case for failure to prosecute, see id. 41(b) ("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."); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (interpreting Federal Rule of Civil Procedure 41(b) as permitting sua sponte dismissals by the court); Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (identifying six factors relevant to deciding whether to dismiss for failure to prosecute), and it appearing that plaintiff has not filed a brief in opposition to the motion for summary judgment as of the date of this order, and that plaintiff, proceeding pro se and in forma pauperis in this action, was advised of the necessity of filing a brief in opposition (Doc. 37) and is personally responsible for failing to do so, see Poulis, 747 F.2d at 868 (identifying "extent of the party's personal responsibility" as first factor), that plaintiff's conduct has prejudiced defendant by protracting these proceedings, see id. (identifying "[p]rejudice to the adversary" as second factor), that plaintiff's failures to file timely a brief in opposition to a motion to dismiss (see Doc. 12), to comply with a previous order of court directing plaintiff to file timely a brief (compare Doc. 12 with Doc. 21), to file timely documents in support of a brief (compare Doc. 12 with Doc. 22), to respond over a three-month period to the instant motion for summary judgment*fn1 (Doc. 32), and to the instant statement of facts*fn2 (Doc. 34), or to comply with the order (Doc. 37) directing plaintiff to file a brief in opposition to the instant motion constitute a history of dilatoriness, see Poulis, 747 F.2d at 868 (identifying "history of dilatoriness" as third factor), that plaintiff's failure to comply with prior orders after being advised that inaction may result in dismissal of the complaint constitutes willful disregard of the court's authority, see Poulis, 747 F.2d at 868-69 (identifying "willful" or "bad faith" conduct as fourth factor), that assessment of costs against plaintiff or the deeming of facts as admitted would be ineffective to deter plaintiff's conduct because plaintiff is proceeding in forma pauperis and the facts are already deemed admitted,*fn3 see id. at 869 (identifying availability of "[a]lternative sanctions" to dismissal as fifth factor), and that claims of the complaint are without merit under 42 U.S.C. § 1983 (see Docs. 32, 33, 34, 36), see Poulis, 747 F.2d at 869-70 (identifying "[m]eritoriousness of the claim" as sixth factor), and it further appearing that defendant's motion for summary judgment is deemed unopposed, see L.R. 7.6 ("Any party opposing any motion shall file a responsive brief . . . [or] shall be deemed not to oppose such motion."), that defendant's statement of material facts are supported by evidence of record (see Docs. 34, 36) and deemed admitted, see L.R. 56.1 ("All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."), and it further appearing that evidence of record does not demonstrate a practice, policy, or custom that deprived plaintiff of a constitutional right, see Bd. of County Comm'r of Bryan County v. Brown, 520 U.S. 397 (1997) (holding that § 1983 liability may only be imposed where a practice, policy, or custom deprives a plaintiff of a constitutional right) (see also Doc. 26), that the evidence of record reflects continuing treatment of plaintiff for his ailments, (see Doc. 36-1 at 1-94; see also Doc. 36-2), that the record is devoid of evidence that plaintiff suffered unnecessary or wanton infliction of pain, or that physicians were reckless in their treatment of plaintiff's medical needs, see Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) ("Only `unnecessary and wanton infliction of pain' or `deliberate indifference to the serious medical needs' of prisoners are sufficiently egregious to rise to the level of a constitutional violation."); Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (stating that "deliberate indifference" is a standard consistent with recklessness), and the court finding that a reasonable jury could not find that defendant violated plaintiff's Eighth Amendment rights and that defendant is entitled to judgment as a matter of law,*fn4 it is hereby ORDERED that the above-captioned case is DISMISSED for failure to prosecute. See FED. R. CIV. P. 41(b); see also id. 56(c).


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