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Michael Kuhn v. Capitol Pavilion

October 19, 2012

MICHAEL KUHN,
PLAINTIFF,
v.
CAPITOL PAVILION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Carlson

MEMORANDUM OPINION

I. Statement of Facts and of the Case.

This is a civil rights action which was first brought by thePlaintiff, Michael Kuhn, through the filing of a counseled complaint on October 31, 2011. (Doc. 1.) Kuhn's initial complaint alleged a violation of the Eighth Amendment to the United States Constitution by the Defendants, in that Kuhn claimed that these Defendants had been deliberately indifferent to his serious medical needs while he was incarcerated at the Capitol Pavilion in November and December, 2009. (Id.)

While Kuhn was initially represented by counsel in this case, on June 29, 2012, Kuhn's counsel moved to withdraw from this lawsuit. (Doc. 21.) Kuhn was given an opportunity to respond to this motion, (Doc. 26.), but neglected to file any reasons. Therefore, the motion of Kuhn's counsel to withdraw was granted on August 20, 2012. (Doc. 29.)

Since the withdrawal of his counsel, there has been a disturbing lack of attention to this litigation by the Plaintiff, Mr. Kuhn. Thus, on August 27, 2012, Kuhn received a copy of the Court's Standing Practice Order. (Doc. 30.) That Standing Practice Order advised Kuhn in clear and precise terms of his obligations as a litigant to respond to defense motions, stating in part that:

If the party opposing the motion does not file his or her brief and any evidentiary material within the [] time frame [set by the court or local rules], Local Rule 7.6 provides that he or she shall be deemed not to oppose the moving party's motion. The motion may therefore be granted if: (1) the court finds it meritorious; or (2) the opposing party fails to comply with Local Rule 7.6 despite being ordered to do so by the court. (Doc. 30, p.2.)

This Standing Practice Order also placed an affirmative obligation on Kuhn to respond to summary judgment motions filed pursuant to Rule 56 of the Federal Rules of Civil Procedure, stating that:

B. Summary Judgment Motion Under Fed. R. Civ. P. 56.

One type of pre-trial motion is a motion for summary judgment under Fed. R. Civ. P. 56. The motion may be made by any party, with or without supporting affidavits. Under Rule 56(e) the affidavits may be supplemented or opposed by depositions, answers to interrogatories or further affidavits. The affidavits may also be supplemented by admissions on file and other appropriate evidentiary material.

Rule 56(e) also provides that a party opposing a summary judgment motion may not rely on the mere allegations or denials in his or her pleading, such as a complaint. Instead, Rule 56(e) requires a party opposing a motion for summary judgment to file evidentiary material (affidavits or other evidence), as described in Rule 56, setting forth specific facts showing there is a genuine issue for trial.

Local Rule 56.1 requires a motion for summary judgment to be accompanied by a separate document containing a short and concise statement of material facts in numbered paragraphs. Local Rule 56.1 also requires a party opposing a summary judgment motion to file a separate concise statement of material facts responding to the numbered paragraphs of the moving party's statement. The local rule further requires that the statements of material fact by both parties must include a reference to that part of the record that supports each statement.

All parties to a summary judgment motion, either moving for it or opposing it, must comply with the filing requirements of Local Rules 7.1 through 7.8, described above. If a party opposing a summary judgment motion does not support such opposition as required by Rule 56, the motion for summary judgment shall be considered solely upon the affidavits or other supporting evidentiary material filed by the moving party, if any, and the motion may be granted. (Id., pp.3-4.)

On August 30, 2012, this case was reassigned to the undersigned for further proceedings. (Doc. 31.) We then imposed several other basic obligations upon Kuhn on September 11, 2011, advising him as follows:

We are presently unable to communicate with Kuhn because we do not have valid mail, e-mail or telephone contact information for the Plaintiff, who is proceeding pro se. As a pro se litigant Kuhn's failure to maintain a contact information where he could be reached itself violates the rules of this Court; specifically, Local Rule 83.18, which provides that: LR 83.18 Appearance of Parties Not Represented by Counsel. Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action, such party shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served upon such party.

Accordingly, IT IS ORDERED as follows:

1. On or before September 25, 2012, Kuhn shall provide the Court with contact information in the form of current mail, e-mail or telephone contact information. Kuhn is advised that the failure to provide this information may result in the Plaintiff being deemed to have abandoned this case, and may lead to the entry of an order dismissing this action without any further notice to the Plaintiff. (Doc. 32.) Mr. Kuhn did not comply with this order and the time for compliance has now passed without any action on his part.

On September 27, 2012, the Defendants moved for summary judgment in their favor on all of Kuhn's claims against them. (Docs. 33, 34, 35.) We then entered an order which stated as follows:

The Plaintiff is ORDERED to file a response to the summary judgment motion in accordance with Local Rule 7.6 on or before October 18, 2012. The Plaintiff is also advised that Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the Plaintiff to respond to motions and provides that: Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.

Local Rule 7.6 (emphasis added).

It is well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency 'if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). Therefore, failure to comply with this briefing schedule may result in dismissal of this action.

(Doc. 37.) Kuhn has not complied with this order and the deadline for compliance has now lapsed. Since the response deadline prescribed by the court has now passed without any action on the Plaintiff's part to respond to the motion, this motion is now deemed ripe for resolution.

With respect to this motion, and Mr. Kuhn's claims that officials at the Capitol Pavilion were deliberately indifferent to his medical needs in the Fall of 2009 when he was housed at this facility, the undisputed and uncontested facts are as follows: When he first arrived at the institution in 2009, Mr. Kuhn admitted that he received a health care orientation form. That health care orientation form detailed how Capitol Pavilion residents are to seek and obtain medical treatment, and was signed by Mr. Kuhn. Mr. Kuhn also admitted to receiving the Capitol ...


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