United States District Court, M.D. Pennsylvania
June 9, 2005.
JESUS M. TORRES, Plaintiff,
D.O. STANLEY BOHINSKI, et al., Defendants.
The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
Plaintiff, Jesus M. Torres, an inmate at the State Correctional
Institution in Dallas ("SCI-Dallas"), Pennsylvania, commenced
this action with a pro se civil rights complaint filed in the
Luzerne County Court of Common Pleas in Wilkes-Barre,
Pennsylvania. Named as Defendants are the following SCI-Dallas
officials: D.O. Stanley Bohinski; M.D. Stanley Stanish; and P.A.
Cheryl Wisniewski. Plaintiff claims that while incarcerated at
SCI-Dallas Defendants have denied him appropriate medical care.
On May 6, 2005, Defendants filed a notice of removal (Doc. 1-1)
of the case, removing this case to the United States District
Court for the Middle District of Pennsylvania. Presently before
the Court is the Defendants' motion to dismiss (Doc. 2)
Plaintiff's complaint. A brief in support of the motion was filed
contemporaneously. Although Plaintiff's brief in opposition to
the motion is now overdue, he has neither made an appropriate
filing nor requested an extension of time in which to do so.
A dispositive motion generally may not be granted merely
because it is unopposed. Since Local Rules of Court must be
"construed and applied in a manner consistent with the Federal
Rules of Civil Procedure," Anchorage Assoc. v. Virgin Islands
Board of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990), the disposition of an
unopposed motion ordinarily requires a merits analysis. The Court
of Appeals for the Third Circuit has stated, however, that Local
Rule 7.6 can be applied to grant a motion to dismiss without
analysis of the complaint's sufficiency "if a party fails to
comply with the rule after a specific direction to comply from
the court." Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d
Local Rule 7.6 provides that if a party fails to file an
opposing brief within fifteen (15) days after service of the
movant's brief, the motion will be deemed unopposed. Based on his
failure to take any action in response to motion to dismiss, it
would appear that Plaintiff may have abandoned interest in
pursuing this matter. However, the Court will grant additional
time for the Plaintiff to respond to the motion and direct him to
file a brief in opposition within twenty (20) days. If Plaintiff
fails to oppose the motion or otherwise communicate with the
Court within twenty (20) days of the date of this Order, the
Court may consider dismissing this case for failure to prosecute
and failure to comply with a court Order under FED.R.Civ.P.
41(b). If Plaintiff fails to respond accordingly, the motion may
be deemed unopposed and granted without a merits analysis.
Moreover, if Plaintiff fails to oppose the motion or otherwise
communicate with the Court within twenty (20) days of the date of
this order, the Court may also consider dismissing this case for
failure to prosecute and failure to comply with a court order
under FED.R.Civ.P. 41(b).
AND NOW, THEREFORE, THIS 9thp> DAY OF JUNE, 2005, IT IS
HEREBY ORDERED THAT Plaintiff shall file a brief in opposition
to Defendant's motion to dismiss within twenty (20) days of the
date of this Order. If Plaintiff fails to file the brief in
opposition the Court will deem the motion unopposed under M.D.Pa.
Local Rule 7.6, and dismiss the case without a merits analysis. See M.D. Pa. Local Rule 7.6;
FED.R.Civ.P. 41(b) ; Stackhouse v. Mazurkiewicz, 951 F.2d 29,
30 (3d Cir. 1991).
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