The opinion of the court was delivered by: Magistrate Judge Smyser
Based on the plaintiff's willful failure to attend the pretrial conference on May 20, 2009 and his history of dilatoriness, we will dismiss the instant case pursuant to Fed.R.Civ.P. 41(b).
I. Background and Procedural History
The plaintiff, a state prisoner proceeding pro se, commenced this 42 U.S.C. § 1983 action by filing a complaint on July 6, 2001. By an Order dated July 12, 2001, the plaintiff was granted leave to proceed in forma pauperis.
On October 26, 2001, the plaintiff filed an amended complaint. By an Order dated June 21, 2002, defendant Dragovich was dismissed from the case. The other defendants filed answers to the amended complaint.
In July of 2002, the plaintiff did not attend his scheduled deposition and the defendants filed motions requesting that the action be dismissed. Based on the plaintiff's explanation that he had been precluded from attending the deposition because prison officials had confiscated his legal materials and his clothing, the motions requesting dismissal were denied.
After the completion of discovery, summary judgment motions were filed. The following claims survived summary judgment: 1) the plaintiff's claims against defendants Miller, Leggore, Moore, Alianiello, Prave and Zihmer based on a December 17, 1999 alleged excessive use of force in an infirmary cell at the State Correctional Institution at Camp Hill (SCI-Camp Hill); 2) the plaintiff's claims against defendants Smith and Klaus based on an April 12, 2000 alleged excessive use of force during the course of a strip search at SCI-Camp Hill; and 3) the plaintiff's claims against defendants Stender and Smith based on an April 12, 2000 alleged excessive use of force while transporting the plaintiff from SCI-Camp Hill to the State Correctional Institution at Pittsburgh.
By an Order dated August 5, 2004, a final pretrial conference was scheduled for September 9, 2004 and jury selection and trial were scheduled to begin on September 27, 2004. After prison officials notified the court that the plaintiff had refused to be transported to the final pretrial conference, Judge Munley entered an order on September 8, 2004, which provided that the "Plaintiff's refusal to appear at the Final Pretrial Conference in this matter could be construed as a failure to prosecute the action, as well as a failure to comply with the rules of court and will result in an involuntary dismissal of the action, on the merits, pursuant to Fed.R.Civ.P. 41(b)." The Order further directed the Clerk of Court to serve the order on the plaintiff's custodian via facsimile. The Order directed the plaintiff's custodian to serve the order on the plaintiff forthwith and to notify the court of the plaintiff's status by 3:00 p.m. on that date. Prison officials then notified the court that the plaintiff had continued to refuse to be transported. By a second order entered on September 8, 2004, Judge Munley cancelled the September 9, 2004 pretrial conference. By an Order dated September 10, 2004, after considering the factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), Judge Munley dismissed the case pursuant to Fed.R.Civ.P. 41(b).
The plaintiff appealed the dismissal of the case. The United States Court of Appeals for the Third Circuit held that the Court had abused its discretion in dismissing the case sua sponte without providing the plaintiff with a full and fair opportunity to be heard regarding the reason(s) he had failed to attend the pretrial conference. Briscoe v. Klaus, 538 F.3d 252, 255 (3d Cir. 2008). The Third Circuit vacated the Order dismissing the case and remanded the case to the district court for further proceedings. Id. at 264.
After remand from the Court of Appeals, Judge Munley held a hearing. Judge Munley found that the plaintiff had refused to be transferred to the final pretrial conference and that his refusal was willful. Judge Munley also found that the defendants had not demonstrated that the plaintiff's conduct had impeded their ability to effectively prepare for trial, that there was no history of dilatoriness on the part of the plaintiff and that the plaintiff's claims have merit. By a Memorandum and Order dated March 27, 2009, Judge Munley concluded that dismissal of the action was not warranted. By the Order of March 27, 2009, Judge Munley cautioned the plaintiff that non-compliance with future court orders would not be tolerated.
The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c), and, on March 31, 2009, the case was reassigned to the undersigned.
Finding the plaintiff's unique handwriting style very difficult to read, by an Order dated April 16, 2009, the court ordered the plaintiff to file, on or before May 6, 2009, a legible copy of his amended complaint. The plaintiff did not comply with the Order.
By a separate Order dated April 16, 2009, trial of the remaining claims was scheduled to commence with jury selection on June 22, 2009 and a pretrial conference was scheduled for May 20, 2009. Each party was ordered to file a pretrial memorandum on or before May 13, 2009. A writ of habeas corpus ad ...