The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Presently before the Court for disposition is the defendants'
joint motion to dismiss pursuant to Federal Rule of Civil
Procedure 37(b). This matter has been fully briefed and argued,
and is ripe for disposition. For the following reasons, we will
grant the motion to dismiss.
Plaintiff Abdel Fattah ("Fattah') is a prisoner in the State
Correctional Institute at Camp Hill, Pennsylvania ("SCI-Camp
Hill"). The defendants are all officers or employees of SCI-Camp
Hill. Fattah instituted the present action on August 6, 2003. On
September 29, 2003, he filed an amended complaint. In his amended complaint, he alleges
that the defendants violated his constitutional rights by
subjecting him to cruel and unusual punishment by assaulting him,
force feeding him, and providing him inadequate medical care.
This case is presently in discovery. On December 13, 2004, the
defendants filed a motion for leave to depose Fattah. Fattah
opposed this motion, arguing that the deposition would not
benefit him, the defendants, or the Court, and he felt that his
medical condition would prevent him from attending a deposition.
On February 4, 2005, we granted the motion for leave to depose.
In a letter to the Court dated February 17, 2005, Fattah
acknowledged that we granted the motion to depose. (Doc. 166). On
March 7, 2005, Defendants provided Fattah with notice by first
class mail that they would take his deposition on March 23, 2005
at SCI-Camp Hill. (Doc. 167). On March 23, 2005, Fattah refused
to leave his cell or answer deposition questions. Thus,
Defendants filed a motion to compel pursuant to Federal Rule of
Civil Procedure 37. We granted this motion on March 24, 2005, and
ordered Fattah to submit to a deposition and cooperate in good
faith. On March 29, 2005, we issued an order requiring that
Fattah submit to a deposition and warning that failure to do so
would result in sanctions, including dismissal of his case.
On March 30, 2005, Fattah again refused to leave his cell or
submit to a deposition. Defendants' attorney read the March 29,
2005 Order to Fattah, but he continued to refuse. On April 5,
2005, Defendants filed the instant motion to dismiss pursuant to
Rule 37(d) for discovery abuses. B. Factual Findings
On August 19, 2005, we held a hearing to address the motion to
dismiss and Fattah's arguments in opposition. Based on this
hearing,*fn1 we make the following findings of fact.
On March 7, 2005, Defendants mailed a notice of deposition to
Fattah in his prison cell. (Doc. 167, Notice of Dep.). Prison
policy dictates that when a prisoner gives a clear physical
response that he does not want his mail, prison officials do not
permit the mail to accumulate in front of his cell and is instead
place it in his property box. (Tr. 76). At the time the notice
was mailed, Fattah was not responding to the mail delivery. (Tr.
96). Thus, consistent with the prison policy, the correctional
officers placed his mail in his property box. (Tr. 96-97) . He
could have recovered the notice from his property box at any time
had he submitted a property request slip to the appropriate
officer. (Tr. 77, 99). During the period in question, Fattah had
no serious medical needs and thus was able to respond to the
mail. (Tr. 14:14-16, Tr. 19-20).
On March 23, 2005, correctional officers arrived at Fattah's
cell to transport him to his deposition in another part of the
prison. (Tr. 6). Fattah refused to respond. (Tr. 7). He lay on
the ground and refused to respond in any one. (Tr. 7). Dr. Young
physically examined him at that time. (Tr. 18-20). This
examination established that no medical ailment prevented him
from attending his deposition. Fattah was "playing possum" and
was perfectly healthy. (Tr. 19). On March 30, 2005, correctional officers again arrived at
Fattah's cell to transport him to his deposition. (Tr. 7-8). He
again refused to respond in any way. (Tr. 8). The defendants'
attorney read him a copy of the Court Order compelling him to sit
for a deposition, and Fattah continued to refuse to respond. (Tr.
8). Dr. Underwood examined him and found no medical reason why he
could not submit to a deposition. (Tr. 55-56). Half an hour after
the correctional officers arrived, Cindy Watson, an employee of
the department of corrections, observed Fattah moving in his
cell. (Tr. 9-10). She saw him raising his bed sheets and making
his bed. (Tr. 9-10).
Rule 37 provides the Court with the authority to dismiss a case
for failure to comply with a discovery order. The following six
factors determine whether dismissal is warranted.
(1) The extent of the party's personal
responsibility; (2) the prejudice to the adversary
caused by the failure to meet scheduling orders and
respond to discovery; (3) a history of dilatoriness;
(4) whether the conduct of the party was willful or
in bad faith; (5) the effectiveness of sanctions
other than dismissal, which entails an analysis of
other sanctions; and (6) the meritoriousness of the
claim of defense.
Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863
(3d Cir. 1984). Not every Poulis factor need be satisfied to
warrant dismissal. C.T. Bedwell & Sons, Inc. v. Int'l Fidelity
Ins. Co., 843 F.2d 683
, 696 (3d Cir. 1988). Dismissal is a
severe penalty and is appropriate only in the most extreme cases.
Id. However, "[i]n certain cases, it is a necessary tool to
punish parties who fail to comply with the discovery process and
to deter future abuses." National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639
, 643 (1976). We conclude that
the Poulis factors dictate that dismissal is warranted in this
case. Turning to the first factor, it is undisputed that Fattah
proceeds pro se, and thus is entirely personally responsible.
Regarding the second factor, prejudice "does not mean
`irremediable harm,' [but] the burden imposed by impeding a
party's ability to prepare effectively a full and complete trial
strategy is sufficiently prejudicial." Ware v. Rodal Press,
Inc., 322 F.3d 218
, 222 (3d Cir. 2003). Fattah's refusal to
submit to a deposition severely impedes the defendants' ability
to prepare a trial strategy. His explanations of the incidents in
his complaint and his alleged injuries are central to the case,
and without a deposition the defendants would be severely
disadvantaged. Furthermore, the costs and time wasted in
scheduling unattended depositions is prejudicial for the purposes
of the second Poulis factor. Hicks v. Feeney, 850 F.2d 152
156 (3d Cir. 1988).
Turning to the third factor, a history of dilatoriness, we find
that although Plaintiff has generally not been dilatory regarding
discovery in this case, he has intentionally delayed and
completely refused to submit to a deposition. Twice Defendants
scheduled depositions, and twice he refused to attend despite our
Order granting leave to depose, the Defendants' notice, and ...