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Harcum v. Klem

December 22, 2008

DARREN HARCUM, MIGUEL SOTO, AND RODELL SURRATT, PLAINTIFF,
v.
EDWARD KLEM, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Conaboy

Magistrate Judge Smyser

MEMORANDUM

I. Background

On October 31, 2006, Plaintiffs, ten state prisoners proceeding pro se, commenced this 42 U.S.C. § 1983 action by filing a seventy-nine page, handwritten complaint. (Doc. 1.) A majority of the claims have been dismissed and numerous Plaintiffs have withdrawn or have been dismissed from the case. As of October 30, 2008, the remaining claims were (1) the equal protection claims of Plaintiffs Harcum, Soto and Surratt concerning the discipline they received after the July 25, 2006, incident where Plaintiffs Harcum and Soto received ninety days of confinement and Plaintiff Surratt received six months of confinement, (2) Plaintiff Surratt's claims that he was assaulted and denied the opportunity to file criminal charges against his attacker, (3) Plaintiff Surratt's claim that Defendant Dudeck discarded mail, and (4) Plaintiff Harcum's claim that he was denied the use of an inhaler for his asthma. This Court adopted the Magistrate Judges recommendation that this case be listed for trial. (Doc. 193.)

Because a majority of the Plaintiffs withdrew or were dismissed from the case and because many of the original claims have been dismissed, on October 31, 2008, in an effort to clarify the issues of the case, the Court ordered the remaining Plaintiffs to file briefs outlining the facts and arguments for their remaining claims and Defendants to file a brief outlining their defenses to the remaining claims in this case on or before December 1, 2008. (Doc. 195.)

Plaintiffs Soto and Surratt refused service of the Court's October 31, 2008, Order and copies of orders mailed to Plaintiffs Soto and Surratt were returned to the Court. (Docs. 196, 197.)

On November 26, 2008, Plaintiff Harcum filed a brief outlining the facts and arguments surrounding his claim that he was denied the use of an inhaler for his asthma. (Doc. 198.) In this brief, Defendant Harcum informed the Court he will no longer pursue his equal protection claim related to the discipline he received after the July 25, 2006, incident. (Id.)

Defendants filed a brief outlining their defenses on December 1, 2008. (Doc. 199.) However, Plaintiffs Soto and Surratt failed to file briefs outlining their remaining claims, as ordered.

By Order on December 4, 2008, the Court Ordered Plaintiffs Soto and Surratt to file these briefs on or before December 13, 2008. (Doc. 200.) In this Order, the Court warned Plaintiffs Soto and Surratt that if they again failed to comply with the Court's Order their claims would be dismissed for failure to prosecute. (Doc. 200.) Because Plaintiffs Soto and Surratt had refused service of the Court's previous October 31, 2008, Order, the Court mailed this Order by certified mail with return receipt requested. The Court received acknowledgments of service of these Orders on December 10, 2008, verifying that Plaintiffs Surratt and Soto received the Order. (Docs. 201, 202.)

On December 11, 2008, Plaintiff Soto filed a one page brief letter outlining his claims. (Doc. 203.) However, as of December 22, 2008, Plaintiff Surratt has failed to file.

II. Discussion

Here, the Court addresses Plaintiff Surratt's refusal to follow Orders and prosecute his case.

Fed. R. Civ. P. 41(b) provides that an action may be involuntarily dimissed "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Further, United States district courts have inherent power to dismiss sua sponte for failure to prosecute and may do so without affording notice of providing an adversary hearing. Reshard v. Lankenau Hosp., 256 Fed. Appx. 506, 507 (3d Cir. 2007) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)); Hewlett v. Davis, 844 F.2d 109, 114 (3d Cir. 1988)(same).

In determining whether to exercise its discretion to dismiss as a sanction for failure to prosecute and failure to comply with court orders, a district court must balance the six factors set forth in Poulis v. State ...


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