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Emerson v. Jennings

March 18, 2009


The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge

(Magistrate Judge Blewitt) :


I. Background

The Plaintiff, James Emerson, formerly an inmate at the Lackawanna County Prison, ("LCP") Scranton, Pennsylvania, filed, pro se, thiscivil rights action on January 6, 2006, pursuant to 42 U.S.C. § 1983. (Doc. 1).*fn1 Plaintiff is no longer incarcerated, and his last known address was an apartment in Reading, Pennsylvania. The Plaintiff also filed two in forma pauperis applications. (Docs. 2 and 5). We then preliminarily screened the Complaint. We issued a Report and Recommendation ("R&R") on January 25, 2006, and we recommended that all four named Defendants, Jennings, Donate, Bunting and Betti, be dismissed for failure to state a claim under the Eighth Amendment against them pursuant to 28 U.S.C. §1915(e)(2)(B)(ii). (Doc. 9). On February 27, 2006, the District Court declined to adopt our Report and Recommendation, and directed Plaintiff to file an amended complaint within twenty (20) days. (Doc. 13).*fn2

On March 20, 2006, Plaintiff filed an Amended Complaint and three Supplements. (Docs. 15, 16, 17 and 18). The Amended Complaint and each Supplement filed by Plaintiff addressed his claims separately against each Defendant. The claims against Defendant Betti were in Doc. 15. The claims against Defendant Bunting were predominantly in Doc. 16. The claims against Defendant Doctor John Doe at Mercy Hospital were in Doc. 17. The claims against Defendant Warden Jennings as well as Defendant Bunting were in Doc. 18. We construed Plaintiff's Amended Complaint to consist of Docs. 15, 16, 17 and 18 combined together.

We then screened Plaintiff's amended pleadings and issued an R&R on March 24, 2006. We found that Plaintiff did not raise any claims against Defendant Janine Donate, Assistant Warden at LCP, in his Amended Complaint and Supplements. Thus, we recommended that Defendant Donate be dismissed. We also found that Defendant Doctor John Doe at the Mercy Hospital was not a state actor and should be dismissed. We found Plaintiff's Eighth Amendment claims of denial of medical care against Defendant Jennings, Defendant Betti, and Defendant Bunting to be sufficient for screening purposes. (Doc. 19). On May 12, 2006, the District Court adopted our Report and Recommendation. (Doc. 28). Thereafter, the remaining Defendants were served with Plaintiff's Amended Complaint and Supplements.

In response to Plaintiff's pleadings, Defendant Bunting filed a Motion to Dismiss Plaintiff's Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), on October 3, 2006. (Doc. 62). Defendant filed her support Brief on October 9, 2006, and Plaintiff filed two opposition Briefs on October 13, 2006 and October 18, 2006. (Docs. 63, 65, and 66).

On November 9, 2006, we issued an R&R and recommended that this case proceed with respect to Plaintiff's Eighth Amendment claim against Defendant Bunting, that she was deliberately indifferent to his serious back condition, and that her Motion to Dismiss be denied with respect to this claim. (Doc. 62). It was recommended that Defendant Bunting's Motion to Dismiss be granted with respect to Plaintiff's Eighth Amendment claims that Defendant Bunting told him to walk to a wheelchair and that Defendant Bunting placed him in a camera cell for twelve (12) days. It was also recommended that this action be remanded to the undersigned for further proceedings, including directing Defendant Bunting to file her answer to Plaintiff's amended and supplemental pleadings. (Doc. 80). On March 28, 2007, the District Court adopted our R&R. (Doc. 92).

On September 20, 2007, Attorney Jeffery C. Dohrmann entered his appearance on behalf of Plaintiff. (Doc. 102). The deadlines for discovery and the filing of dispositive motions were extended. On October 24, 2007, the parties consented to proceed before the undersigned for all proceedings. (Doc. 105).

In 2008, the Court again extended, on several occasions, the deadlines in this case. Plaintiff's deposition was scheduled for May 28, 2008 by Defendant Bunting, and Plaintiff's counsel were present for the deposition. However, the deposition had to be cancelled since Plaintiff's counsel was not able to locate Plaintiff and the mail he sent to Plaintiff was returned as undeliverable.

On October 15, 2008, the Court issued a final order extending the deadlines. The discovery deadline was set at January 1 2009, and the dispositive motion deadline was set at February 27, 2009. (Doc. 130).

On October 30, 2008, counsel for Plaintiff filed a Motion to Withdraw as Counsel. (Doc. 132). The Court scheduled oral argument on the Motion and Plaintiff was directed to be present. (Doc. 133). On November 14, 2008, the Motion to Withdraw as Plaintiff's Counsel and the Court's Order scheduling oral argument sent to Plaintiff were returned as undeliverable. (Doc. 134). Plaintiff did not provide either the Court or his counsel with a current address.

In his Motion to Withdraw, Plaintiff's counsel stated:

2. During the course of the representation, Plaintiff, on several occasions, has been unresponsive to telephone messages and correspondence requesting information and seeking to schedule certain matters, and has failed or refused to follow the undersigned's advice in obtaining or providing to counsel certain critical information, or taking certain critical steps to further Plaintiff's case.

3. In the past, Plaintiff has also changed addresses and/or phone numbers without informing counsel so that lapses in the ability to contact Plaintiff occurred.

4. During the month of October 2008, while the parties were attempting to schedule depositions of Plaintiff and others, Plaintiff has again "disappeared," i.e. his phone has been disconnected and certified and regular mail sent to his last known address has been returned and marked, "Return to Sender - - Attempted - - Not Known - -Unable to forward."

5. Under the above circumstances, i.e. failure or refusal to cooperate with counsel's advice, failure or refusal to respond to inquiries regarding critical steps and information, and "disappearing" while failing or refusing to provide counsel with phone numbers or addresses where Plaintiff may be contacted, counsel is unable effectively to represent Plaintiff or his interests, and counsel believes and therefore avers that the attorney/client relationship has been irretrievably broken. (Doc. 132, ¶'s 2.-5.).

The Court held oral argument on the Motion of Plaintiff's counsel to Withdraw, and Plaintiff failed to appear for argument, and he failed to advise the Court of his current address. (Doc. 135). The Court concurred with the stated ...

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