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Lindsey v. Lenny

February 2, 2010


The opinion of the court was delivered by: Chief Judge Kane

(Magistrate Judge Mannion)


Before the Court is a report and recommendation ("R&R") from Magistrate Judge Malachy E. Mannion filed on November 25, 2009, and objections filed thereto. (Doc. Nos. 11, 13.) The R&R recommends that the case be dismissed for failure to prosecute the action under Federal Rule of Civil Procedure 41(b) due to Plaintiff's failure to file an amended complaint. (Id.) Plaintiff objects on the basis that he has a "very strong case." He also moves for appointment of counsel. For the reasons that follow, the R&R will be adopted, and the motion for appointment of counsel will be denied.


On June 29, 2009, Plaintiff Victor Teon Lindsey, II, filed a complaint alleging that he received food poisoning from Reese's Peanut Butter Cup candies he purchased in a prison vending machine. (Doc. No. 1.) The complaint also alleges that Plaintiff contacted Defendant "Richard H. Lenny d/b/a the Hershey Company" to exhaust his private administrative remedies. As a result of Defendant's failure to respond to these requests and affidavits, Plaintiff avers that Defendant defaulted and entered into a contract to pay him $5 million for his injuries. A second document containing the same allegations, titled "complaint," but docketed "amended complaint" was received the following day. (Doc. No. 4.) Two weeks later, a third complaint containing the same allegations was filed, but was given a separate case number. (Case No. 09-1348, Doc. No. 1.) Although Plaintiff's claims were originally docketed in two separate proceedings, Case Numbers 09-1236 and 09-1348, the cases were consolidated on August 25, 2009, when Plaintiff indicated that all filings were intended to support the same case. (Doc. No. 8.) In conjunction with consolidating the cases, Magistrate Judge Mannion directed Plaintiff to file an amended complaint on or before September 18, 2009. (Doc. No. 8.) On September 4, 2009, Plaintiff wrote to the Court requesting a copy of the docket sheet and seeking an extension of time to respond the Court's Order in light of a pending prison transfer. (Doc. No. 9.) By Order dated September 4, 2009, Magistrate Judge Mannion reiterated that Plaintiff must file an amended complaint in compliance with his Orders, but extended the deadline for doing so until September 30, 2009. (Doc. No. 10.) Plaintiff did not file an amended complaint. On November 25, 2009, two months after the extended deadline, Magistrate Judge Mannion issued an R&R suggesting that the case be dismissed for failure to comply with Court Orders. (Doc. No. 11.) A copy of the R&R was sent to Plaintiff at USP Big Sandy, although at or about that time, he was transferred to USP Florence. Noting the possibility that Plaintiff had not received the R&R, on January 13, 2010, the Court ordered that a copy of the R&R be sent to Plaintiff at USP Florence and extended Plaintiff's deadline for filing objections to the R&R to January 21, 2010. (Doc. No. 12.)

On January 26, 2010, the Court received a document dated January 19, 2010, which indicates that Plaintiff does not agree with dismissal of his claim. (Doc. No. 13.) Plaintiff's filing does not meet the requirements of an amended complaint, nor does it contain allegations that would cure the deficiencies in the complaint(s) enumerated by Magistrate Judge Mannion in the R&R and prior Orders. Though Plaintiff does not indicate the particular section of the R&R with which he disagrees, the Court favorably interprets his filing to be an objection to the R&R. Plaintiff's filing also requests that he be appointed an attorney because he has "a very strong case" and has been placed in a special housing unit without adequate access to a law library. (Doc. No. 13 at 3.)


Although Plaintiff initially failed to object to the R&R in a timely fashion, he avers that he did not receive the first mailing of the R&R. Because he timely responded to the R&R when sent to his current address, the Court interprets his recent filing as an objection to the R&R. When a party objects to an R&R, this Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b); M.D. Pa. L.R. 72.3. Accordingly, the Court will review the R&R de novo and will independently consider Plaintiff's request for an attorney.


A. Objections to the Report and Recommendation

The report recommended dismissing the case pursuant to Federal Rule of Civil Procedure 41(b) because Plaintiff was directed to file an amended complaint on or before September 30, 2009, but failed to do so. (Doc. No. 11 at 2.) This failure was after the deadline had already been extended to September 30, 2009 at Plaintiff's request. (Doc. No. 10.) At this date, four months after the deadline has passed, Plaintiff has still failed to file an amended complaint as directed. To determine whether dismissal is warranted in this case, the Court will consider the factors articulated by the Third Circuit Court of Appeals in Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) and Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (reviewing a district court's dismissal for failure to prosecute in consideration of the Poulis factors). The factors to balance are:

(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 or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.

Emerson, 296 F.3d at 190 (citing Poulis, 747 F.2d at 868).

In this case, Plaintiff is representing himself pro se, thus there is no attorney or other party to blame for Plaintiff's failure to timely follow Court Orders. Although Plaintiff argues in his most recent filing that he does not "have the proper law to win this case," which the Court interprets to mean adequate access to a law library, such access is not necessary to comply with the Court Orders directing him to amend his complaint. The August 25, 2009 Order and September 9, 2009 Order state that an amended complaint is necessary due to the consolidation of the cases and the multiple documents Plaintiff had labeled "complaint." The Orders also require Plaintiff to follow the Federal Rules of Civil Procedure by indicating precisely who he intends to be named Defendants, what he alleges Defendants did wrong, what law or rights he alleges were violated, and a reasonable assessment of his damages, ...

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