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Dennis v. Evans

February 5, 2010

CHARLES DOMINIC DENNIS, PLAINTIFF
v.
JAMES EVANS, NEWPORT TOWNSHIP POLICE DEPARTMENT, WILKES- BARRE TOWNSHIP POLICE DEPARTMENT (PART TIME), DEFENDANT



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

(Chief Judge Kane)

(Magistrate Judge Mannion)

MEMORANDUM

Before the Court is a report and recommendation from Magistrate Judge Malachy E. Mannion filed on November 25, 2009, advising that Plaintiff's complaint be dismissed for failure to prosecute the action under Federal Rule of Civil Procedure 41(b) (Doc. No. 35), and Plaintiff's objection.*fn1 (Doc. No. 38.)

I. Background

Plaintiff originally filed a civil rights complaint as an inmate at Luzerne County Correctional Facility, Wilkes-Barre, Pennsylvania, on April 13, 2009. (Doc. No. 1.) On June 4, 2009, Plaintiff informed Judge Mannion that he was no longer incarcerated. (Doc. No. 10.) As a result, that same day, Judge Mannion issued an order directing Plaintiff to file the appropriate in forma pauperis motion or pay the appropriate filing fee. (Doc. No. 11.) On July 8, 2009, Judge Mannion issued a scheduling order requiring Plaintiff to file a status report. (Doc. No. 12.) In response, on July 9, 2009, Plaintiff filed a motion to appoint counsel, a motion for a preliminary injunction, and a motion to amend his complaint. (See Doc. Nos. 13, 15, 16.)

On July 15, 2009, Defendants filed two separate motions to dismiss. (See Doc. Nos. 17, 18.) On July 16, 2009, Defendant Wilkes-Barre Township Police Department filed its brief in support. (Doc. No. 23.) On July 24, 2009, Defendants James Evans and the Newport Township Police Department filed a brief in support. (Doc. No. 25.)

On July 28, 2009, Plaintiff filed a status report and another application to proceed in forma pauperis. (See Doc. Nos. 26, 27.) On July 31, 2009, Judge Mannion issued an order denying Plaintiff's motion to appoint counsel and motion for a preliminary injunction, but granting Plaintiff's motion to amend his complaint. (Doc. No. 28.) In granting Plaintiff's motion to amend, Judge Mannion ordered that Plaintiff file an amended complaint on or before August 20, 2009. (Id.) On July 31, 2009, Judge Mannion issued a separate order granting Plaintiff's application to proceed in forma pauperis. (Doc. No. 29.)

On September 29, 2009--over a month after his amended complaint was originally due-- Plaintiff filed a motion for an extension of time to amend his complaint. (Doc. No. 32.) In his motion, Plaintiff explained that he "was in the process of completing his amended complaint when, due to financial difficulties, [his] electricity was shut off." (Id. ¶ 2.) Plaintiff stated that, because he no longer had access to his computer files, he filed a request for an extension of time to complete his amended complaint on or around August 20, 2009. (Id. ¶ 3.) However, the Court's docket sheet does not include any such filing by the Plaintiff.*fn2 Plaintiff further averred that he was incarcerated at the Luzerne County Correctional Facility on September 3, 2009, for violating his bail. (Id. ¶¶ 4-5.) Plaintiff stated that he did not have access to legal materials, because there was no law library in the minimal offenders unit where he was incarcerated. (Id. ¶ 6.) Plaintiff further stated:

The plaintiffs [sic] related criminal case is set for trial the week of October 13[,] 2009, at which a disposition should be made. . . . The plaintiff expects a favorable disposition in his criminal case and respectfully requests an extension of time until his criminal case is settled so that he may be afforded the opportunity to amend his civil complaint and pursue his civil case in the proper manner at that time. . . .

The plaintiff feels he has a strong case and due to circumstances beyond his control, he is unable to pursue his civil case at this time due to lack of resources. The plaintiff wishes to pursue his claim but feels he will be unable to do so until his criminal case is settled October 13, 2009.

(Id. ¶¶ 8-10.) As a result, Plaintiff requested an extension of time to file his amended complaint. (Id. at 3.)

On September 30, 2009, Judge Mannion granted the extension, ordering Plaintiff to file his amended complaint by October 30, 2009. (Doc. No. 33.) This deadline passed without any filing by Plaintiff. On November 18, 2009, Defendants' counsel submitted a letter to Judge Mannion noting Plaintiff's failure to timely file an amended complaint and asking that the case be dismissed. (Doc. No. 34.)

On November 25, 2009, Judge Mannion issued his report and recommendation. (Doc. No. 35.) The report stated that Plaintiff had failed to comply with Judge Mannion's Court Order directing Plaintiff to file an amended complaint, and was, therefore, subject to dismissal pursuant to Federal Rule of Civil Procedure 41(b). The report further explained that a district court ...


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