IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
October 22, 2012
LISA LEE SHILOH,
JOHN DOES, ET AL., DEFENDANTS
The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge
(Magistrate Judge Blewitt)
REPORT AND RECOMMENDATION
On June 8, 2012, Plaintiff Lisa Lee Shiloh, formerly an inmate at the State Correctional Institution Cambridge Springs ("SCI-Cambridge"), Cambridge Springs, Pennsylvania, and currently confined at ACACC-Gettysburg, 45 Major Bell Lane, Gettysburg, Pennsylvania,*fn1 filed, pro se, a civil rights action with this Court pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff also filed a form Motion for Leave to Proceed in forma pauperis. (Doc. 2).
Plaintiff named the following Defendants in her Complaint, suing them both in their individual and their official capacities:
1. John Does of Pennsylvania State Police Gettysburg, who were State Police Officers at all times relevant to this action.
2. John Does of Adams County Drug Task Force, who were Police Officers at all times relevant to this action.
3. John Does of Adams County Sheriff's Department, who were Police Officers at all times relevant to this action.
4. John Does of Littlestown Police Department, who were Officers at all times relevant to this action.
5. Littlestown Chief of Police, who was Chief of Police at all times relevant to this action.
6. John Does of the Special Emergency Response Team (SERT) of Adams County, who were SERT Officers at all times relevant to this action.
7. John Does of Cumberland Township Police Department, who were Police Officers at all times relevant to this action.
8. Kennith Hassinger, Corporal of Adams County Drug Task Force, who was Supervisor at all times relevant to this action.
9. James O'Shea, Pennsylvania State Trooper of Adams County Drug Task Force, was a State Trooper at all times relevant to this action.
10. Douglas Hilyard, Littlestown Police Officer and Adams County Drug Task Force, was a Police Officer at all times relevant to this action.
11. Christopher Keppel, Pennsylvania State Trooper, Gettysburg [sic] was a State Trooper at all times relevant to this action.
12. John Brumbaugh, Pennsylvania State Trooper, Gettysburg [sic] was a State Trooper at all times relevant to this action.
13. Eric Beyer, Pennsylvania State Trooper, Gettysburg [sic] was a State Trooper at all times relevant to this action.
14. David Olweiler, Pennsylvania State Trooper, Gettysburg [sic] was a State Trooper at all times relevant to this action.
15. Edward Crouse, Pennsylvania State Trooper, Gettysburg [sic] was a State Trooper at all times relevant to this action.
16. John Does. (Doc. 1, pp. 2-3).
According to Plaintiff, at approximately 4:30 a.m. on June 15, 2010, the aforementioned Defendants violated her Fourth, Eighth and Fourteenth Amendment rights as well as her rights under Article I, Section 8 of the Pennsylvania Constitution when they entered her residence at 68 Matthew Court in Littlestown, Adams County, Pennsylvania, and arrested her. (Doc. 1, pp. 2-3).
Plaintiff alleged that "the Defendants deployed the chemical agent 'Tear Gas'" into her home while knowing that she and her family were inside at that time. (Id.). Plaintiff maintains that "the Defendants['] authorization and use of the chemical agent 'Tear Gas' was malicious for the intent of causing harm." (Id.). Plaintiff asserted that, after waking to "what sounded like a gun shot," her eyes, nose, and throat began to burn, and she experienced difficulty breathing. (Id.).
Plaintiff also alleged that "Defendants" then "ambushed" her bedroom and "threw her on her stomach, held a loaded gun to her head," and instructed her not to move. (Id.). Plaintiff asserted that during this "ambush," she was "nude" and that "two male Officers (names currently unknown) dressed her while she was handcuffed." (Id. at 4). Plaintiff averred that her residence was "so polluted with the chemical agent 'Tear Gas' that the K-9 unit could not enter." (Id.). Plaintiff additionally alleged that she was "denied any evaluation by medical personnel and or [sic] medical treatment." (Id. at 3).*fn2
Plaintiff's specific causes of action were as follows:
(1) "The Plaintiff alleges her Fourth Amendment Right to be free from excessive and unreasonable force was violated when the Defendants knowingly, willingly, and voluntarily deployed the chemical agent 'Tear Gas' into her home when it was not listed on probable cause of search warrant [sic]."
(2) "The Plaintiff avers her Eighth Amendment Right to be free of cruel and unusual punishment was violated by the Defendants when they handcuffed her naked and had two male Defendants dress her causing unsolicitated (sic) touching of the Plaintiff while she was nude."
(3) "The Plaintiff asserts her Eighth Amendment Right to adequate medical care was violated by the Defendants when she was refused evaluation and treatment of medical care after complaining of difficulty breathing, eyes, nose, and throat burning [sic] due to the chemical agent 'Tear Gas' while in Defendants['] care, custody, and control."
(4) "The Plaintiff asserts her Fourteenth Amendment Right to due process was violated by the Defendant[s] when they forced open [her] front door with a ramrod, exploding/shattering her rear [F]rench door to her home without executing a search warrant until six days later on June 21, 2010, damaging her home and her personal property." (Doc. 1, p. 4).
As relief, Plaintiff requested that this federal Court award her punitive damages "from all defendants individually for physical injury from the chemical agent 'Tear Gas' emotional distress (sic), and damage of property." (Id.). Plaintiff further asked that this Court grant her declaratory relief and any other relief that was deemed appropriate. (Id.).
In liberally construing Plaintiff's pro se Complaint, we found that Plaintiff was raising a Fourth Amendment excessive force claim at the time of her arrest by the deployment of Tear Gas, two Eighth Amendment cruel and unusual punishment claims regarding handcuffing Plaintiff while she was nude and denial of medical care for her difficulty breathing, as well as burning in her eyes, nose and throat from the tear gas, and a Fourteenth Amendment due process claim regarding Defendants' damage to Plaintiff's home and personal property without a valid search warrant. (Id.). With regards to Plaintiff's Eighth Amendment claims, we construed them as Fourteenth Amendment claims because the claims arose from an incident that occurred before Plaintiff was incarcerated. See Groman v. Township of Manalapan, 47 F.3d 628, 633-34 (3d Cir. 1995) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990)) ("A cause of action exists under § 1983 when a law enforcement officer uses force so excessive that it violates the Fourth and Fourteenth Amendments to the United States Constitution."); Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000) (quoting Colburn v. Upper Darby Township, 838 F.2d 663, 668 (3d Cir. 1988)) (holding that a pretrial or even a pre-sentencing detainee claiming cruel and unusual punishment is governed by the Fourteenth, not the Eighth, Amendment, but that a pretrial detainee "is entitled 'at a minimum, [to] no less protection' than a sentenced inmate is entitled to under the Eighth Amendment"); Natale v. Camden County Correctional Facility, 318 F.3d 575, 581 (3d Cir. 2003) (citing Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987)) ("In previous cases, we have found no reason to apply a different standard than that set forth in Estelle (pertaining to prisoners' claims of denial of medical care under the Eighth Amendment) when evaluating whether a claim for inadequate medical care by a pre-trial detainee is sufficient under the Fourteenth Amendment.").
We then screened Plaintiff 's Complaint as required by the Prison Litigation Reform Act of 1995,*fn3 (the "PLRA"). On August 10, 2012, we issued a Repot and Recommendation ("R&R") and recommended that Plaintiff's claims for damages under the Pennsylvania Constitution be dismissed with prejudice. We also recommended that Plaintiff's claims for damages against Defendants in their official capacities be dismissed with prejudice. Additionally, we recommended that Plaintiff's request for declaratory relief (Doc. 1, p. 4) be dismissed from this case with prejudice.
Further, we recommended that Plaintiff's Fourth Amendment excessive force claim and her Fourteenth Amendment claim of denial of medical care bedismissed without prejudice. We also recommended that Plaintiff's Fourteenth Amendment claims of cruel and unusual punishment and, procedural due process be dismissed with prejudice. (Doc. 8).
On September 4, 2012, the Court issued an Order and adopted our R&R in its entirety. (Doc. 11). The Court granted Plaintiff leave to amend only her Fourth Amendment excessive force claim and her Fourteenth Amendment denial of medical care claim. (Doc. 11). The Court also directed Plaintiff to file her Amended Complaint within twenty (20) days of the date of its Order.
On September 11, 2012, Plaintiff filed a Motion for an Extension of Time to file her amended Complaint and we granted it. (Docs. 12 & 13). We gave Plaintiff until October 14, 2012, to file her Amended Complaint. (Doc. 13). To date, Plaintiff has failed to file her Amended Complaint. Thus, Plaintiff has not filed her Amended Complaint, has not requested a second extension of time to do so, and has not filed anything since her September 11, 2012, Motion for Extension of Time.
Federal Rule of Civil Procedure 41(b) allows for the dismissal of an action for "failure of the plaintiff to prosecute or comply with these rules or order of court . . ." Fed.R.Civ.P. 41(b) (emphasis added). In the instant case, Plaintiff has failed to prosecute her action and, has failed to comply with the Order of this Court by her failure to timely file her Amended Complaint. Plaintiff has taken no action with respect to her case since September 11, 2012, when she filed a Motion for Extension of Time to file her Amended Complaint. (Doc. 12). In our September 14, 2012 Order, we granted Plaintiff's Motion for an Extension of Time and directed her to file her Amended Complaint by October 14, 2012. We then afforded Plaintiff sua sponte, an additional one week to comply with the Court's Order to file her Amended Complaint. More than one (1) month has passed since we issued our Order directing Plaintiff to file her Amended Complaint by October 14, 2012. (Doc. 13). However, Plaintiff has failed to timely file her Amended Complaint and, she failed to request another extension of time.
The behavior of Plaintiff constitutes a willful failure to prosecute her case, as opposed to a situation in which she has had problems in pursuing her case, but made efforts to comply with this Court's Orders. We find that Plaintiff's "behavior has been so egregious as to make self-evident the factual findings and analysis [of the Poulis factors]." Williams v. Kort, 223 Fed. Appx. 95, 103 (3d Cir. 2007). We find that due to Plaintiff' s failure to file her Amended Complaint, this case cannot proceed forward. Therefore, we shall recommend that this case be dismissed without prejudice under Rule 41(b) due to Plaintiff's failure to prosecute it and due to her failure to comply with this Court's Orders. Plaintiff should be deemed as abandoning her action. See McCray v. Dauphin Co. Prison, 2007 WL 431886 (M.D. Pa); Nelson v. Berbanier, 2006 WL 2853968 (M.D. Pa.).
Because we find that Plaintiff's conduct clearly shows that she intended to abandon her case, we do not find that an analysis of the factors of Poulis v. State Farm Fire & Cas. Co., 747 F.3d 863, 868 (3d Cir. 1984) is required before recommending that this case be dismissed under Rule 41(b). See Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994); Guyer v. Beard, 907 F. 2d 1424 (3d Cir. 1990) (the district court's requirement to perform an analysis under Poulis is obviated where Plaintiff's conduct is so egregious as to demonstrate an abandonment of his case).
In Jackson v. Johnson, 2006 WL 2136218, *1 (M.D. Pa.), the Court stated that "Fed. R. Civ. P. 41(b) allows for the dismissal of an action where the Plaintiff fails to prosecute or fails to comply with rules or orders of the court."
The Jackson Court also stated:
The factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984) [are analyzed] to determine whether dismissal of the action is appropriate in this case. The Poulis factors the Court should consider 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 an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868.
We agree with the Magistrate Judge's determination that the Plaintiff's dilatoriness outweighs any of the other considerations set forth in Poulis, and that Plaintiff's failure to comply with the Order of May 30, 2006 indicates that the Plaintiff has abandoned this lawsuit. His inaction points to no other logical conclusion.
Thus, out of an abundance of caution, we also analyze the Poulis factors. We find that Plaintiff's stated conduct in delaying her case is attributed to her personally. Plaintiff was required to have filed her Amended Complaint by October 14, 2012. (Doc. 13). However, Plaintiff has not properly filed any amended pleading as directed by the Court's Orders, and she also has given no indication that she intends to pursue her action. Plaintiff has failed to contact the Court to provide an explanation as to why she failed to comply with its Orders.
We find that Plaintiff has caused prejudice to Defendants since they have been named in a federal lawsuit, and no action, including service of a proper pleading, has been made on them to date. While Plaintiff does not yet have a significant history of dilatoriness in this case, her present conduct in failing to prosecute her June 8, 2012 case is nonetheless evidence of dilatoriness, especially since this case cannot proceed without her compliance with the Court's Orders.
Plaintiff has failed to comply with the Court's Orders, and thus, we shall now recommend that her case be dismissed without prejudice in accordance with Rule 41(b). As stated, this case cannot proceed without Plaintiff's compliance with the Court's Orders to file her Amended Complaint. Because we shall recommend that Plaintiff's case be dismissed without prejudice and because Plaintiff is seeking to proceed in forma pauperis, we find that other sanctions would not be effective in this case.
Thus, we find that the Poulis factors weigh in favor of dismissing this case without prejudice and that Plaintiff's failure to comply with the Court's Orders and file her Amended Complaint demonstrates she has abandoned her case.
First, we respectfully recommend that Plaintiff's Motion to proceed in forma pauperis (Doc. 2) be granted solely for the purpose of filing this action. More importantly, based on the above discussion, in accordance with Rule 41(b), we respectfully recommend that this case be dismissed without prejudice on the basis of Plaintiff's failure to comply with the Court's Orders, and, failure to prosecute her action by filing her Amended Complaint.
Thomas M. Blewitt
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LISA LEE SHILOH, Plaintiff v. : JOHN DOES, et al., Defendants
CIVIL ACTION NO. 4:CV-12-1086
: (Judge Jones)
(Magistrate Judge Blewitt)
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 22, 2012.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
THOMAS M. BLEWITT United States Magistrate Judge
Dated: October 22, 2012