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Ball v. Famiglio

February 3, 2010

DAWN MARIE BALL, PLAINTIFF,
v.
DR. FAMIGLIO, ET AL., DEFENDANTS



The opinion of the court was delivered by: Yvette Kane, Chief Judge Middle District of Pennsylvania

(Chief Judge Kane)

MEMORANDUM

Plaintiff Dawn Marie Ball is an inmate confined at the State Correctional Institution at Muncy, Pennsylvania. She filed this civil rights action on April 14, 2008, pursuant to 42 U.S.C. § 1983. Since that time, she has been provided the opportunity to submit two (2) amended complaints in this matter. The purpose of this Memorandum is to resolve the procedural confusion which currently exists on the docket, and to the motions which are presently pending in this action.

I. Background

A brief review of the tortured procedural history of this case is in order. In conducting a preliminary review of Ball's original complaint, the Court found that the complaint was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2). (Doc. No. 7.) In the complaint, Plaintiff named as defendants the SCI-Muncy Prison, and SCI-Muncy Medical and Psychology Departments. Because these defendants are not persons for purposes of maintaining a civil rights action, see Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), Plaintiff was afforded the opportunity to submit an amended complaint.

On May 5, 2008, an amended complaint was filed setting forth numerous inadequate medical care claims against twenty-seven (27) SCI-Muncy employees. (Doc. 11.) Following service of the amended complaint, motions to dismiss were filed by three separate groups of defendants. Plaintiff failed to oppose the motions, and was ordered to do so. (Doc. No. 27.) Some time later, she wrote to the Court claiming she had never received copies of Defendants' motions and briefs, despite the fact that Certificates of Service were attached to these documents. Nevertheless, and in the interests of justice to this pro se Plaintiff, the Court directed the Clerk of Court to supply Plaintiff with copies of the relevant documents. (Doc. No. 34.) When Plaintiff again failed to respond to the motions, an order was issued directing her to do so. (Doc. No. 36.) Thereafter, Ball sought an enlargement of time within which to file her responses. However, because in reviewing the Defendants' motions it appeared clear that the filing of a second amended complaint was warranted, an Order was issued on March 26, 2009, granting Defendants' motions only to the extent that Plaintiff was directed to submit a second amended complaint in this matter.*fn1 She was afforded twenty (20) days within which to do so.

To date, Plaintiff has never filed a second amended complaint in accordance with this Court's directive of March 26, 2009. Rather, she has bombarded the Court with letters, requests and motions, most of which are irrelevant in view of the fact that she has never filed her amended complaint in this matter. In reviewing her later correspondences, she now appears to maintain that she had no knowledge of the Court's March 26, 2009 Order directing the filing of an amended complaint. With this background in mind, the Court will now address the motions pending in this case.*fn2

II. Discussion

A. Motion for Counsel

Pending is Plaintiff's third motion for the appointment of counsel. (Doc. No. 39.) The Court will not reiterate the standard utilized in deciding a motion for counsel filed by a prisoner, as it has previously been set forth not only in this case, but recently in other civil actions Plaintiff is litigating before the Court at this time.*fn3 Because Plaintiff fails to come forth with any new arguments in support of the appointment of counsel, her motion will be denied without prejudice at this time.

B. Request for Entry Default

Plaintiff requests the entry of default with respect to all of the Defendants named in the amended complaint in this action. Clearly, in light of the March 26, 2009 Order granting Defendants' motions to dismiss to the extent that Plaintiff is directed to file a second amended complaint in this action, and the fact that she has failed to do so, any request for default must be denied. Since the filing of her request for default Plaintiff has informed the Court that she never received the Order of March 26, 2009, directing a second amended complaint. As such, the Clerk of Court will be directed to provide Plaintiff with a copy of the March 26, 2009 Order, and she will be afforded fifteen (15) days within which to file a new amended complaint in accordance with the Court's directive.

C. Discovery Motions

Based upon the discussion above and the fact that Plaintiff has not yet filed her second amended complaint in this matter, the outstanding discovery-related motions are clearly subject to dismissal without prejudice as premature in light of the procedural status of this case. Accordingly, Plaintiff's Motion to Compel Evidence and Discovery (Doc. No. 62) and Motion to Order Prison Officials to Allow Interviews and Declarations (Doc. No. 70) are dismissed without prejudice as premature. Further, the Clerk of Court will be directed to strike from the record and return to ...


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