The opinion of the court was delivered by: Chief Judge Kane
On November 17, 2011, Magistrate Judge Martin Carlson issued a Report and Recommendation in the above-captioned case, in which he recommended that Plaintiff Gilberto Colon's complaint (Doc. No. 1) be dismissed with prejudice for failure to comply with court orders. (Doc. No. 28.) On November 22, 2011, the Court received an objection to the Report and Recommendation from Plaintiff, asking to present new evidence that certain defendants are not entitled to qualified immunity. (Doc. No. 29.) On the same day, the Court received a letter from Plaintiff, in which he asked the Court to appoint him counsel. (Doc. No. 29-1.) Plaintiff also attached a notice of appeal to his request for counsel. (Doc. No. 29-2.) After considering Plaintiff's objection to the Report and Recommendation, the Court will overrule the objection and adopt the Report and Recommendation.
On September 13, 2011, Plaintiff, proceeding pro se, filed a complaint consisting of convoluted and nonsensical factual allegations. (Doc. No. 1.) Plaintiff's complaint centers around an investigation into allegations that Plaintiff sexually molested his daughter, and that he had been set up by his daughter's mother and her fiancee, who have enlisted the help of two organized criminal gangs to assassinate him to prevent him from exposing the truth. (Id. at 6.) Earlier in 2011, Plaintiff filed a lawsuit centering around the same theme. Colon v. Karnes, No. 1:11-cv-890. Documents attached to the complaint in that case suggested that no such investigation has ever occurred.
In his complaint, Plaintiff, an inmate at the Lebanon County Correctional Facility, named the following six defendants: (1) Robert Karnes; (2) Michael Ott; (3) Carrie Everett; (4) Sally Barry; (5) Greg Cook; and (6) James Newcomer. First, Plaintiff alleged that Michael Ott ordered Correctional Officer Rodriguez to relocate him from isolation, placing him into the disciplinary population, which Plaintiff alleges put him in imminent danger, because of the "situation with [his] daughter." (Doc. No. 1 ¶ 1.) Next, Plaintiff alleged that Counselor Carrie Everett denied Plaintiff the ability to photocopy his legal papers; denied Plaintiff help with a "suitable home plan;" and denied Plaintiff access to indigent products. (Id. ¶ 2.) Third, Plaintiff alleges that Robert Karnes is the Warden of the Lebanon County Correctional Facility, and thus is responsible for the welfare of inmates of the prison. (Id. ¶ 3.) Last, Plaintiff alleges that Sally Barry, Greg Cook, and James Newcomer all denied Plaintiff "a suitable home plan," thereby violating Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. (Id. ¶ 4.) As relief, Plaintiff sought $1.2 million from each defendant. (Id. at 2.)
On September 15, 2011, Magistrate Judge Carlson issued a Report and Recommendation, recommending that Plaintiff's complaint be dismissed. (Doc. No. 5.) However, from September 20, 2011 through October 5, 2011, Plaintiff filed a number of letters with the Court, some of which the Court construed as motions to amend. (Doc. Nos. 6-17.) Accordingly, the Court granted the motion to amend, and remanded the matter to Magistrate Judge Carlson. (Doc. No. 18.) Thereafter, Magistrate Judge Carlson entered two orders, directing Plaintiff to file an amended complaint that stands by itself without reference to a complaint already filed. (Doc. Nos. 20, 25.) However, Plaintiff has yet to file an amended complaint, and has merely filed a number of letters arguing the merits of his original complaint.
The Magistrate Act, 28 U.S.C. § 636, and Federal Rule of Civil Procedure 72(b), provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject, or modify the Report and Recommendation, the Court is to make a de novo determination of those portions of the Report and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1).
A court must review the complaint of a plaintiff seeking to proceed in forma pauperis prior to service of process under 28 U.S.C. § 1915(e). If the court determines that an action fails to state a claim on which relief may be granted, dismissal of that claim is required. 28 U.S.C. § 1915(e)(2)(B) (ii); see also id. § 1915A(b)(1). The standard of review for failure to state a claim in this context is the same as the standard governing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Grayson v. Mayview State Hosp., 293 F.3d 103, 110 (3d Cir. 2002). Thus, dismissal is proper when the defendants are entitled to judgment as a matter of law. See Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990). To avoid dismissal, the complaint must contain allegations sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Essentially, a plaintiff must "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009)). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997).
On November 17, 2011, Magistrate Judge Carlson issued a Report and Recommendation, recommending that Plaintiff's complaint be dismissed for failure to comply with court orders. (Doc. No. 28.) On November 22, 2011, the Court received an objection to the Report and Recommendation from Plaintiff, asking to present new evidence that certain defendants are not entitled to qualified immunity. (Doc. No. 29.) Petitioner did not object to any other portion of the Report and Recommendation.
When a plaintiff fails to comply with court orders, Rule 41(b) of the Federal Rules of Civil Procedure permits dismissal of the action. Prior to dismissing a case under Rule 41(b), the Court must first consider the factors articulated by the United States Court of Appeals for the Third Circuit in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). 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 ...