The opinion of the court was delivered by: Judge Arthur J. Schwab
Chief Magistrate Judge Amy Reynolds Hay
Presently before the Court is a Motion for Summary Judgment filed by the U.S. Marshal. For the reasons that follow, the motion (ECF No. 61) will be granted.
Lacy E. Tilley ("Plaintiff") is a federal prisoner who was sentenced in one of his federal criminal trials on July 15, 2008.*fn1 He is also awaiting sentencing on other federal criminal charges in two other cases before Judge Conti.*fn2 Plaintiff is currently being housed in the Allegheny County Jail as a federal prisoner. He has been there since August 2007. ECF No. 5 at 4, ¶ 19.
In March 2009, Plaintiff filed his original complaint, in which he named the U.S. Marshal Supervisor, and employees of the Allegheny County Jail ("ACJ") as defendants and complained about the conditions of his confinement in the ACJ. ECF No. 5. Subsequently, Plaintiff filed an amended complaint, ECF No. 15, wherein he complained of many of the same conditions of confinement as he had in the original complaint but added four defendants: (1) Allegheny County Health Services ("ACHS"); (2) Dana Philips, director of ACHS; (3) Dr. Mebane, a psychiatrist who works with ACHS; and (4) Nurse Nancy (collectively "the Medical Defendants"). In the amended complaint, Plaintiff added claims of medical deliberate indifference.*fn3
The operative complaint named as a defendant, inter alia, the Unites States Marshal Supervisor (hereinafter the "Marshal" or "Federal Defendant"). The Marshal filed a motion to dismiss/summary judgment, ECF No. 61, and a brief in support, with attached evidentiary materials. ECF No. 63. The Court ordered that the Motion would be treated as one seeking summary judgment and ordered that the Plaintiff respond accordingly by March 18, 2010. ECF No. 66. On February 18, 2010, the same date as the order directing a response was filed, Plaintiff filed a motion to postpone, suspend or stay the proceedings. ECF No. 67. In that motion, Plaintiff again complained of having no access to any legal material, having no paper, no envelopes, and no access to a law library and he requested that all deadlines be suspended until July 1, 2010. Id. As noted in a response filed by the Medical Defendants, in spite of the self proclaimed alleged deficiencies, Plaintiff has "managed to actively pepper this court with pleadings, in ongoing criminal matters. On February 17, 2010, Plaintiff moved for the appointment of a forensic accountant (Case 2:07-cr-0290, Doc. 80). This is a 5 page, single-spaced document filed with this court on the docket in 2 of his ongoing criminal matters. 4. Plaintiff has filed a Motion for Pro Se Representation and Related Matters in 2:09-CR-0043 (Document 55) on January 27, 2010. This is a seven-page single spaced document. 5. The filing of these documents belies the truthfulness of the allegations contained in Document 67." ECF No. 68 at 1 to 2, ¶¶ 3 - 5.
Yet again demonstrating his ability to find postage, paper and envelopes (contrary to his verbal representations), Plaintiff filed a response to the facts that the Medical Defendants pointed out. Plaintiff filed on March 2, 2010, what he called an "Omnibus Motion to Resolve Plaintiff's Prohibitive Conditions." ECF No. 71. In that filing, Plaintiff conceded that an indigent inmate gets six # 10 envelopes per 30 days but this only occurs roughly 10 times a year and that he is forced to choose between using these for legal purposes or personal correspondence, which he contends unfairly forces a choice upon him, which we note is not unlike the choice forced upon all who do not possess unlimited resources. ECF No. 71 at 1 to 2, ¶¶ 3 - 4. Plaintiff further complained that only about 6 pages of paper can fit in these # 10 envelopes, thereby limiting the amount he can send out in one mailing. Id., at ¶ 5.*fn4 Plaintiff concedes that the commissary has larger envelopes for sale but that he, being indigent, cannot buy any. Id., at ¶ 6. Plaintiff then goes on to complain that the law library is inadequate as a general matter but, moreover, given that he is in the Disciplinary Housing Unit ("DHU") there is no law library access at all therein. Plaintiff does not specify when he was placed in the DHU but it appears that notwithstanding his placement in the DHU, he has been more than able to compose and file many pleadings and motions, both in this case and in his pending criminal cases. Plaintiff also complains of lack of carbon paper. But he does not explain why, given that he concedes he has much time on his hands, he cannot hand copy that which he wished to have carbon copied. Plaintiff contends that he can easily "whip together a simple motion" but that he cannot possibly respond to a complex summary judgment motion given his current circumstances in the DHU. Id., at ¶¶ 15 to 17.
However, even in his "Omnibus" motion, it appears that Plaintiff was still not being entirely forthright with the Court. For example, on March 19, 2010, a mere 17 days after he filed his "Omnibus" motion in this case, complaining of his lack of paper, postage and legal research, Plaintiff filed his six page "Position and Memorandum of Law with Respect to Pecuniary Loss Pursuant to U.S.S.G. 2.B1.1" in his criminal case at No. 06-216. In that pleading, Plaintiff asserted that "[a]lthough I am merely a pro se defendant and untrained in the technical aspects and formalities of the law, I have put a great deal of effort into understanding this small nitch [sic] of the law. The government needs to respond to this issue. 3. With all due respect to the Court, I have a drastically different understanding of how the law applies than that of the Court as was expressed on March 8, 2010." U.S.A. v. Tilley, No. 06-CR-216 (W.D. Pa. ECF No. 386, at 1, ¶¶ 2 - 3). It is apparent from reading this pleading in toto, Plaintiff apparently had access to some legal research at least on the sentencing guidelines, enabling him to argue at length and in depth, including arguing about the "statutory definition and application of actual loss." Id., at ¶ 10. Indeed, evidence from Plaintiff himself indicates at least at one point that Judge Conti, who was presiding over three of his pending criminal cases, apparently ordered that Plaintiff's standby counsel provide Plaintiff postage but that even then, this was not sufficient to meet his apparently voracious need. See U.S.A. v. Tilley, No. 07-CR-290 (W.D. Pa. ECF No. 69-2 at 14). Needless to say, Plaintiff's actions in his ongoing cases, speak louder and possibly truer than his words. In light of his actions, Plaintiff's complaints ring hollow at best.
Notwithstanding the foregoing, after requesting the Court to stay the case, the Court granted in part and denied in part Plaintiff's request. ECF No. 76. The Court granted Plaintiff an extension of time in which to file his objections to the Report addressing his preliminary injunction motions, but denied the motion in all other respects. Although, as noted above, Plaintiff was able to file an extensive Sentencing Position memorandum in his criminal case, he apparently did not have the same attention or level of commitment to his civil case as the deadline of March 18, 2010, by which to respond to the Marshal's summary judgment motion came and went without any response from Plaintiff.
The Allegheny County Defendants then filed a motion to dismiss, ECF No. 85, and a brief in support. ECF No. 87. The Court ordered Plaintiff to file by May 15, 2010, his response to the Allegheny County Defendants' motion to dismiss. ECF No. 87.
Plaintiff then filed another "Omnibus" response, with the opening paragraph being "I have no paper, no postage, no copies and no money." ECF No. 89, at 1, ¶ 1. In that response, he inter alia, responded, albeit belatedly, to the Marshal Supervisor's motion for summary judgment, not with evidence but with brief argument. ECF No. 89 at 4 to 5, ¶¶ 31 to 39. Notwithstanding that Plaintiff's response to the Marshal's summary judgment motion was filed out of time, and without ...