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Spence v. Carr

United States District Court, W.D. Pennsylvania

February 19, 2014

ROBERT RUSSELL SPENCE, Plaintiff,
v.
ALISA N. CARR, et al., Defendants.

MEMORANDUM ORDER ECF No. 33.

DAVID STEWART CERCONE, District Judge.

This civil action was commenced on October 5, 2011 by the filing of a motion for leave to proceed in forma pauperis, and was referred to Chief United States Magistrate Judge Lisa Pupo Lenihan for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1), and Local Rules of Court 72.C and 72.0. That motion was denied as the appropriate supporting documentation was not filed with the motion. (ECF No. 2.) Thereafter, on October 18, 2011, the $350 filing fee was received by the Clerk of Court and the Complaint (ECF No. 5) was docketed.

On October 26, 2011, Plaintiff filed an Amended Complaint (ECF No.8), which the Magistrate Judge struck in an Order dated February 21, 2012 (ECF No. 25), finding inter alia that:

[T]he Original Complaint and the Amended Complaint are too varied in substance and form for the Court to accurately determine what Plaintiff intends to plead. Therefore, to allow Plaintiff to clarify his claims and the parties, the Court will strike the Amended Complaint and grant him leave to file a second amended complaint which names each and every defendant he wishes to sue, and includes all of the claims and supporting factual allegations to which he would like those defendants to respond and which he would like the Court to consider from this point forward.... In drafting his second amended complaint, the Court cautions Plaintiff that he may only join as parties in the same lawsuit those defendants against whom the claims arise from the same transaction or occurrence and involve a question of law or fact common to all defendants. Fed.R.Civ.P. 20(a)(2).... Thus, while Plaintiff may combine multiple unrelated claims against a single defendant in a lawsuit, he cannot combine unrelated claims against multiple defendants in one lawsuit.

2/21/12 Order at 3-4 (ECF No. 25) (citations omitted). On May 21, 2012, Plaintiff filed a Second Amended Complaint (ECF No. 29), but failed to comply with the proof of service requirements of Rule 4( l ) as directed by the Magistrate Judge in her 2/21/12 Order. Nonetheless, one of the Defendants, Alisa N. Carr, filed a Motion to Dismiss the Second Amended Complaint (ECF No. 33) on March 7, 2013. Despite granting numerous requests for extensions of time to comply with the various court orders, and being informed that failing to comply with the orders may result in dismissal of this lawsuit for failure to prosecute, Plaintiff did not provide the service copies for the Second Amended Complaint or proofs of service, nor did he reply to Defendant Carr's motion to dismiss.

On August 19, 2013, the Magistrate Judge issued a Report and Recommendation (ECF NoAO), recommending that the Motion to Dismiss filed by Alisa N. Carr (ECF No. 33) be granted with prejudice, and this civil action be dismissed with prejudice against the remaining Defendants for failure to prosecute pursuant to Federal Rule of Civil Procedure 41 (b). Service of the Report and Recommendation (ECF No. 40) was made on Plaintiff at Beaver County Jail, 6000 Woodlawn Road, Beaver, PA 15001, and on counsel for Defendant Carr via electronic mail. Plaintiff and Defendant Carr were informed that in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(8) and (C), and Rule 72.0.2 of the Local Rules of Court, that they had fourteen (14) days to file any objections. No objections to the Report and Recommendation have been filed, but Plaintiff filed a Third Amended Complaint (ECF No. 41) on August 26, 2013.

After de novo review of the pleadings and documents in the case, together with the Report and Recommendation and objections thereto, the Court finds:

The Third Amended Complaint should be stricken from the record for the following reasons:

1. The Third Amended Complaint is untimely. Although the Third Amended Complaint is dated May 6, 2013, it was not delivered to the Court until August 26, 2013. See ECF No. 41 at 1; see also Staff Notes entered on 8/28/13. No reason is provided by Plaintiff for the untimely filing of the Third Amended Complaint despite numerous extensions of time to do so and the Court's admonition that no further extensions would be granted.

2. The Third Amended Complaint fails to comply with the Magistrate Judge's previous Order (ECF No. 25) with regard to joining of multiple parties in one lawsuit and thus violates Federal Rule of Civil Procedure Rule 20(a)(2). In this regard, the Court notes that:

(a) Plaintiff has asserted, inter alia, state common law claims against criminal defense attorneys, who allegedly represented him at one time, for breach of contract and professional malpractice/violating the code of ethics, which are not based on common facts.[1]
(b) Plaintiff has also alleged misconduct by the federal prosecutor, Ross Lenhart, [2] and the court appointed stand-by counsel, Thomas Brown, in a pending criminal case in which Spence has been indicted-2:09-cr-105-in the Western District of Pennsylvania. These allegations are unrelated to the claims in this civil action, and thus, are misjoined. Any claims of misconduct in Criminal Case No. 09-105 should be raised in that case, or in a habeas case filed after that case is concluded.
(c) The Third Amended Complaint fails to allege any facts to support legally cognizable claims against Defendants United States Postal Service, OB & GYN Associates, Anne Shaheen, M.D., Allegheny County Special Fee Dispute Board, and Louis P. Vitti, Esquire, and thus, fails to establish a basis for joinder of these Defendants.

3. The Third Amended Complaint fails to comply with the Magistrate Judge's previous Order (ECF No. 25) as Plaintiff failed to provide the Court with service copies and completed Marshals 285 forms and Notice ...


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