The opinion of the court was delivered by: Judge Conaboy
We consider here a Motion to Dismiss for failure to prosecute this case and failure of the Plaintiff, through counsel, to comply with Court orders and appropriate rules of procedure.
There are serious allegations advanced in this case, and we are hesitant to dismiss it on procedural grounds. But, we must also meticulously consider Defendants' rights, and cannot condone complete failure to respond to Court orders and the appropriate rules of procedure. We have extended every courtesy and consideration and offer of help to the Plaintiff and to Counsel to no avail.
Rosa L. McNeil (Plaintiff) filed this civil rights action regarding the death of her daughter, Marrie Linda McNeil (Decedent).*fn1 The 42 year old Decedent was found dead in a holding cell at the State Correctional Institution, Muncy, Pennsylvania (SCI-Muncy) on the morning of July 4, 2002.
By Memorandum and Order dated January 20, 2006, this Court granted a motion to dismiss the federal claims asserted against Defendants Commonwealth of Pennsylvania; the Pennsylvania Department of Corrections ("DOC"); and SCI-Muncy. On March 10, 2006, an unopposed summary judgment motion was granted in favor of Defendants Lycoming County Coroner's Office and Coroner Charles Kiessling, R.N. with respect to the Plaintiff's federal claims.
Defendants Wexford Health Sources, Inc. and two (2) Wexford employees, Craig Bardell, M.D. and David H. Martin, P.A. (hereinafter the Wexford Defendants) responded to the complaint by filing a motion (Doc. 10) to dismiss several allegations of the Plaintiff's complaint. Their motion sought dismissal of any and all demands for punitive damages, attorney fees, and Count VII of the complaint for Plaintiff's failure to file a Certificate of Merit.
On October 17, 2005 the Wexford Defendants filed a second motion (Doc. 36) to dismiss. The Wexford Defendants argued that Counts V, VI, and VII of the complaint should be dismissed with prejudice due to the Plaintiff's failure to file a Certificate of Merit as required by Pennsylvania Rule of Civil Procedure 1042.3.
On January 31, 2006, the Wexford Defendants filed a supplemental motion (Doc. 39) to dismiss the complaint on the grounds that Defendant Wexford Health Sources, Inc. was immune from suit under the Eleventh Amendment
By Memorandum and Order dated March 21, 2006, the Wexford Defendants' initially filed motion (Doc. 10) to dismiss the complaint was denied. Specifically, the request for dismissal of any and all of the Plaintiff's requests for attorney's fees and their remaining argument for dismissal of Count VII (medical malpractice) of the complaint were denied.
By Memorandum and Order dated July 25, 2006, the Wexford Defendants' second motion (Doc. 36) to dismiss was partially granted.*fn2 Specifically, dismissal was entered in favor of the Wexford Defendants with respect to the state law claims that the Wexford Defendants, who are licensed professionals, deviated from an acceptable standard of professional care as alleged in Counts V, VI, and VII of the complaint.
By Memorandum and Order dated August 29, 2006, the Wexford Defendants' supplemental motion (Doc. 39) to dismiss the claims against Defendant Wexford Health Sources, Inc. under the Eleventh Amendment was denied.
In addition to the aforementioned motions to dismiss, the Wexford Defendants filed a motion for summary judgment and a statement of material facts on July 3, 2006. See Docs. 49 & 50. A brief in support of said motion was timely submitted on July 13, 2006. Once again, the Plaintiff failed to file an opposing brief.
In an attempt to bring some order into this case, the Court convened a Case Management Conference on August 2, 2006. On that same date (August 2, 2006) the Wexford Defendants filed a motion for involuntary dismissal (Doc. 58) for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). The ...